#11109 - The Traditional Approach - Conflict of Laws

The Traditional Approach (followed by 10 juris re torts/12 juris re contracts)

1. 3 Core Principles

   1. (1) Territoriality

      1. "[E]very nation possesses an exclusive sovereignty and jurisdiction within its own territory." Justice Story, Commentaries on the Conflict of Laws § 18 (pg. 10)

         • Legislatures only legislate with respect to their own territory BUT such power is absolute (only they can legislate).

   2. (2) Localization

      1. "[N]o state or nation can, by its own laws, directly affect, or bind property out of its own territory, or bind persons not resident therein, whether they are natural born subjects, or others." Story, Commentaries on the Conflict of Laws § 20 (pg. 11)

         • The kind of dispute is localized where multiple territories have jurisdiction (e.g. tort is localized to place where injury occurred).

   3. (3) Vested Rights OR Comity

      1. SPLIT

         • (3) Vested Rights

           • "The theory of the foreign suit is that, although the act complained of was subject to no laws having force in the forum, it gave rise to an obligation, an obligatio, which like other obligations, follows the person, and may be enforced wherever the person may be found." Slater v. Mexican Nat'l R.R. (pp. 12-13)

             • Law's "method of creating rights is to provide that upon the happening of a certain event a right shall accrue. The creation of a right is therefore conditioned upon the happening of an event . . . . When a right has been created by law, this right itself becomes a fact . . . . A right having been created by the appropriate law, the recognition of its existence should follow everywhere." Jospeh Beale, Treatise on the Conflict of Laws § 73 (pg. 12)

               • Courts don't apply the law to a dispute, they enforce rights in a dispute.

               • If a right is vested somewhere else, it should still apply everywhere else.

         • (3) Comity

           • "[W]hatever force and obligation the laws of one country may have in another, depend solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent." Story, Commentaries on the Conflict of Laws § 23 (pg. 11)

           • "'[C]omity of nations' . . . is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another." Story, Commentaries on the Conflict of Laws § 38 (pg. 12)

2. Rules

   1. General Rules

      1. "[T]here can be no recovery in one state for injuries to the person sustained in another, unless the infliction of the injuries is actionable under the law of the state in which they were received." Alabama Great Southern R.R. Co. v. Carroll (pg. 6)

         • This general rule of law is "subject, in certain jurisdictions, to the qualification that the infliction of the injuries would also support an action in the state where the suit is brought had they been received within that state." Carroll (pg. 6)

      1. "The law of the forum determines the jurisdiction of the courts, the capacity of the parties to sue or be sued, the remedies which are available to suitors and the procedure of the courts." Mertz v. Mertz (pg. 74)

   2. Tort

      1. In tort, the law of the place of the injury is the applicable law. See Carroll (pg. 8)

         • Carroll

           • "[W]here the unlawful act is committed in one jurisdiction or state, and takes effect . . . in another jurisdiction or state, the [tort] is deemed to have been committed and is punishable in that jurisdiction or state in which the result is manifested, and not where the act was committed." Carroll (pg. 8)

             • Notwithstanding the fact that, in Carroll, the last act of negligence to complete the tort occurred in Alabama, the court applied Mississippi law as the injury itself manifested in Mississippi.

         • Restatement on the Law of Conflict of Laws

           • "The place of the wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place." Restatement § 377 (pg. 14)

             • EXCEPTIONS

               • (1) If the law of the place of the wrong depends upon "the application of a standard of care," that standard should be taken from the law of the "place of the actor's conduct." Restatement § 380(2) (pg. 15)

               • (2) A person required, forbidden, or privileged to act under the law of the "place of acting" should not be held liable for consequences in another state. Restatement § 382 (pg. 15)

           • "Except in the case of harm from poison, when a person sustains bodily harm, the place of the wrong is the place where the harmful force takes effect on the body . . . . The person harmed may thereafter go into another state and die from the injury . . . . The place where this last event occurs is . . . immaterial. The question is only where did the force impinge upon the his body." Restatement § 377 Note 1 (pg. 16)

           • "Where harm is done to the reputation of a person, the place of the wrong is where the defamatory statement is communicated." Restatement § 377 Rule 5 (pg. 16)

             • Brewster v. Boston Herald-Traveler Corp. (pg. 16): "The plaintiff is entitled to have his claims for recovery treated not globally but severally, state by state."

               • BUT Keeton v. Hustler Magazine, Inc. (pg. 16) held that all damages from the multistage libel action must be sought in a single action under the "single publication rule" but left open the question whether damages would be determined under one law or many.

               • BUT in Dale System, Inc. v. Time, Inc. (pg. 16), the court applied the law of the plaintiff's home state to the entire proceeding on the ground that "in cases of multi-state libel generally, the greatest harm to repute will occur in the state of domicile."

           • In Bernstein v. National Broadcasting Co. (pg. 16), the court held that a cause of action for invasion of privacy depended on the law of the jurisdiction where the "plaintiff was when his feelings were wounded."

      2. Interspousal Immunity in Tort

         • SPLIT

           • Majority Rule: The law of the place of the wrong controls as to whether one spouse is immune from suit in tort by the other. Buckeye v. Buckeye (pg. 42)

           • Minority Rule: The issue of incapacity to sue based upon family relationship is a matter of domestic relations and thus the law of the place of the domicile controls. See Hauschild v. Continental Cas. Co. (pg. 43)

      3. Vicarious Liability

         • The First Restatement characterized vicarious liability as a tort question: "When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the torts of the other are determined by the law of the place of the wrong." § 387; see also Alabama Great Southern R.R. v. Carroll; but see Levy v. Daniels' U-Drive Auto Renting Co.(applying the law of the place of the domicile as oppose to the law of the place of injury).

   3. Contract

      1. Validity

         • Milliken

           • "The general rule is that the validity of a contract is to be determined by the law of the state in which it is made; if it is valid there, it is deemed valid everywhere, and will sustain an action in the courts of a state whose laws do not permit such a contract." Milliken v. Pratt (pg. 18)

             • "Even a contract expressly prohibited by the statutes of the state in which the suit is brought, if not in itself immoral, is not necessarily nor usually deemed so invalid that the comity of the state . . . will refuse to entertain an action on such a contract . . . ." Milliken v. Pratt (pp. 18-19)

         • Restatement of Conflict of Laws § 332

           • Law Governing Validity of Contract. The law of the place of contracting determines the validity and effect of a promise with respect to

             • (a) capacity to make the contract;

             • (b) the necessary form, if any, in which the promise must be made;

             • (c) the mutual assent or consideration, if any, required to make a promise binding;

             • (d) any other requirements for making a promise binding;

             • (e) fraud, illegality, or any other circumstances which make a promise void or voidable;

             • (f) except as stated in § 358, the nature and extent of the duty for the performance of which a party becomes bound;

             • (g) the time when and the place where the promise is by its terms to be performed;

             • (h) the absolute or conditional character of the promise.

         • "Place of Contracting" Rule

           • Restatement of Conflict of Laws

             • § 311. Place of Contracting. The law of the forum decides as a preliminary question by the law of which state questions arising concerning the formation of a contract are to be determined, and this state is . . . called the "place of contracting."

             • Comment d to § 311

               • Determination of "place of contracting." Under its Conflict of Laws rules, in determining the place of contracting, the forum ascertains the place in which, under the general law of Contracts, the principle event necessary to make a contract occurs. . . .

               • Then, and not until then, does the forum refer to the law of such state to ascertain if, under the law, there is a contract, although of course there normally will be a contract unless the local law of Contracts of the state to which reference is thus made differs from the general law of Contracts as understood at the forum . . . .

             • Subsequent Provisions re the "place of contracting" under the general law of Contracts

               • § 312. Formal Contract. Except as stated in § 313 [dealing with renewal of formal contracts], when a formal contract becomes effective on delivery the place of contracting is where the delivery is made.

               • § 323. Informal Unilateral Contract. In the case of an informal unilateral contract, the place of contracting is where the event takes place which makes the promise binding.

               • § 325. Informal Bilateral Contract. In the case of an informal bilateral...