PROF. WILLIAM P. STRENG
CH. 2 - TRADITIONAL APPROACHES
Substantive subject matter
issues involving “conflicts” include:
Corporations (business associations)
Additional Fundamental Issues Ch. 1
Renvoi – p. 122 –
which law decides how to approach these issues
Substance vs. procedure – conflicts
only applicable to substance?
limitations – relevance?
– overriding other concerns?
Penal laws –
not enforceable in another jurisdiction?
Types of torts to be differentiated:
the elements of tort from jurisdiction to jurisdiction, and the legal effects
of these variants.
Traditional Conflicts Analysis p.15
See 1st Restatement of the
Law of Conflicts (1934) – concerning “wrongs.”
Is a “vested rights” analysis to be
applied – i.e., are the legal rights of parties when “wrongs” have occurred to
be recognized across jurisdictional borders?
Traditional rule: lex loci delicti – the law of the place of the wrong or the tort controls.
Alabama Great Southern RR Case p.15
citizen of Alabama.
an Alabama corporation.
Lawsuit for negligence filed in
contract in Alabama.
fellow servants/effect in Miss.?
liability? Under Alabama law
but not under Mississippi law.
Where was negligence? Injury in Mississippi.
Court adheres to a “vested rights” theory. continued
Alabama Great Southern
Why is the law of
Mississippi relevant in the Alabama based proceeding?
Should not the Alabama court just seek
to produce the “right” or “just” result between these parties?
But were rights “vested” in the
parties, as derived from the specific place of the wrong?
Alabama Great Southern
Should the primary objective of
“conflicts” rules be:
To achieve uniformity of the best
results among the various jurisdictions? or,
To respect the results that would occur if this
proceeding has been initiated in the courts at the “place of wrong,”
therefore, negating forum shopping possibilities? Is this a respect for
Alabama Great Southern
Did the employment contract
between the plaintiff and the employer incorporate the rights identified in the
If so, how do we identify this
applicable contract law of Alabama?
Consider (p. 24): (1) the possibility of vicarious liability
in the car rental context under an applicable state statute, but (2) possible
pre-emption of that state statute by federal law.
1st Restatement –
Basic Rules p.25
The fundamental jurisdictional rule
for torts – “place of wrong” is where the “last event” necessary
to cause liability for tort takes place.
Special rule for poisoning – where the
harmful force takes effect;
why not ingestion place?
Harm to land or chattels –
place where force takes effect on the thing (causing damage).
Defamation – where the statement is communicated – causing harm
1st Restatement –
Basic Rules, cont. P.27
§ 384 - tort liability created at the
place of wrong will be recognized in other states.
§ 385 - impact of contributory
precluding liability is also determined at the place of the
§ 390 – survival of actions –
tort actions survival of death is determined by law of place of wrong.
§ 412 – measure of damages is
determined by the law of the place of the wrong.
§ 421 – similar for exemplary
Marra v. Bushee p.28
tort issue – Alienation of affections.
filed in Vermont Fed. Dist. Ct.
N.Y. resident sues Vermont resident.
Jury verdict for plaintiff but
defendant asserted that NY law applied and action not valid in NY.
Court of Appeals: Holding that Vermont law applies
: (1) intentional tort – punitive
response – where harm occurs (domicile?); or
(2) Place of wrong is where “last
event” occurs to cause the injury, i.e., Vermont.
Intentional Torts p.33
Should the jury determine the location
of the conduct – i.e., a factual issue, i.e. where had the defendant’s tortious
conduct primarily occurred?
Or, is this a legal issue – to be
determined by the judge?
1st Restatement: §311 – has a contract been formed – see the
law of the “place of
contracting.” Forum law
picks the state.
I.e., where is the place of the
“principal event” necessary to make a contract?
§312 – a formal contract – if
effective on “delivery.” The
place of contracting is where the delivery of the contract is made.
How Becoming Binding
§314 – delivery when document is
posted in the mail, or received by carrier.
§315 – formal contract
completed when delivered by an agent.
E.g., broker as agent.
§323 - informal unilateral contracts – made
where event takes place which makes the promise binding
Validity of the contract
What law governs the validity
of a contract?
See 1st Restatement, §332 – place of contracting
governs with respect to (1) legal capacity of the parties
(corporation?), (2) necessary form,
(3) the consideration required, (4) fraud or illegality, (5) time for
§333 – place of contracting
determines the legal capacity to enter into a contract. Cf., capacity to transfer land (e.g.,
capacity of a minor or a married woman).
for making a contract.
Restatement, §334 – determined by the place of contracting.
E.g., requirement of a writing and the applicability of the “statute of
§336 (p. 39) concerning law of
negotiable instruments – for determining whether the instrument is
§340 – re place of contracting to
transfer land controls validity of contract; cf., transfer of the land itself –
controlled by situs law.
§355 duty for performance – where that performance is to occur.
difference between (1) obligation location and (2) performance location.
§360 - illegality of performance –
determination of legal status at the place of the anticipated performance.
§358 – for determining the law
governing whether performance has occurred.
Poole v. Perkins p.40
H & W executed joint promissory
note to the order of P when residing in Tennessee.
Enforcement sought when all parties
were domiciled in Virginia where note was payable.
Tenn. - contract of a married woman
was voidable (at time of note delivery; not later).
Virginia – no
such limitation on legal capacity.
Was her legal disability effective in
Virginia – where note was payable? No,
intention imputed - law of place of performance applies. continued
Poole v. Perkins continued p.40
The focus of Poole vs
Should parties be treated as intending to enter into an
enforceable contract as of the inception (otherwise fraud)?
Can the parties agree to the location of enforcement even
though not physically located in that state (e.g., domicile state) when
How evidence this location for performance in/outside the
Linn v. Employers Reinsurance p.44
Insurance brokers seeking commissions
from the insurance carrier. Trial Ct. dismissed suit.
in N.J. Broker went to
N.Y. to negotiate agency with insurer & informed that agency status
accepted by Kansas City home office.
Paid commissions for 27 years!
N.Y. contract & not enforceable because of Stat. of Frauds – not in writing
for contract more than one year. continued
Linn v. Employers Reinsurance continued
Is the contract formed where
acceptance is heard or where the acceptance is spoken?
Restatement: Where words spoken
But, what if no evidence as to where
words were spoken: various options – N.Y., K.C. or Pa.?
that Defendant did not prove contract made in N.Y. (and, therefore, NY laws did
not apply). Presumption then
that forum law (Pa) applies ( and no writing required
here under the Statute of Frauds).
International air travel example:
1) Tokyo – Alaska – Denmark – Paris
(air travel contract –safe passage)
2) Food from Alaska eaten over Canada
(tort issue - where & type – source or place of effect?)
3) Ticket from AmEx
– Michigan – NY - & modification in Japan (ticket purchase contract)
4) Refusal to stop in Denmark
5) Dies in France & wrongful death
action – tort & survival of wrongful death action? continued
Law governing action for
Law governing whether negligence or strict liability
Refusal of medical assistance
and, therefore, contributory negligence?
What law applicable to airline’s responsibility for safe
Refusal (contract action) to mitigate damages (limiting
Law governing tort and/or contract status?
Restatement, §9, domicile as place where person has a “settled connection.”
§10 - forum law determines this
§11 - a person has only one domicile
(cf., multiple “residences”).
§13 - home defined as where “intimacy”
of relation between “person and the place.”
§14 - domicile of origin established
§15 – domicile of “choice” – changed
to new location identified as “home”
Domicile, continued p.52
§16 – physical presence at the location
required (general vicinity).
§18 thru §20 - no change of domicile
without current, specific intent to relocate the domicile (& make a
§41 – domicile of corporation –
where incorporated; cf.,
other entities (e.g., LLC & partnership);
cf., “seat of management and control” – “stapled corps.” IRC §269B.
White v. Tennant p.53
What is the situs
of domicile at time of death when dying intestate? (1) West Va. – where intestacy laws provide
all personal property to spouse, or (2) Pa. – ½ of personalty
Facts show removal form West.Va. to Pa., even returning
temporarily and dying in West Va.
West.Va. court holds
Pa. intestacy laws are controlling since domicile had been relocated.
How avoid this conflict? Must have a domicile!
Domicile as “personal territoriality.”
Rodriquez Diaz v. Sierra
Martinez -1st Cir. p.56
Minor (under 21) in P.R. in accident
in P.R. and then moves t o N.Y. where emancipated
invoke diversity jurisdiction in P.R. Fed. Court for his
Dist. Ct. says domicile still with
Minor’s P.R. domicile controlling for
Use N.Y. law
to determine (1) domicile and (2) emancipation?
Use a separate concept of federal
Rodriquez Diaz v. Sierra Martinez -1st Cir., cont.
Holding: presumably a domiciliary in N.Y. (meeting
physical presence and intent tests), notwithstanding a minor under P.R. law.
Discussion re purpose of
diversity: p. 62.
Local prejudice – relevant here?
Dissent: Not possible for this P.R. minor to lose his
old domicile by reason of P.R. law.
Plus, this case has all P.R.
elements (p.63) and no reason to invoke diversity jurisdiction. (i.e., valid local interests).
Domicile – Other Purposes p.64
Applicable state law will control:
Marital status, including
State tax issues
U.S. domicile – federal tax issues
Special Domicile Situations p.65
Military status examples:
in a state on the military base; or, (b)
located outside the U.S., with domicile still in the U.S.
In a federal prison outside
state of pre-prison domicile.
Buildings on the “state line.”
§121 - law governing marriage - where “contract of
marriage” takes place.
§123 – “common law” marriage
recognized if acts to create it occurred in state where valid.
§128 – cf., marriage in nomadic tribe
§129 - evasion of the requirement of
domicile, e.g., marriage in Las Vegas - recognized
§130 – remarriage within a prohibited
time period OK if married in another state.
1st Restatement, cont.
§132 – marriage declared void by
domicile is invalid everywhere (public policy grounds).
§134 – marriage contrary to public
policy not recognized in second state.
§137 – law governing legitimacy of
child – governed by domicile of parent whose status is questioned.
§138 - §140 – further child legitimacy
rules – determined at domicile.
Marriage Legitimacy & Foreign Law p.68
§141 – legitimacy transfers from law of creation to another state.
In re May’s Estate, p. 68 –
decedent marries niece and six children to these married persons.
Mom dies. Father & some children contest issuance
of letters of administration to one daughter.
Daughter says father not a surviving spouse since marriage never valid.
Marriage in Rhode Island as permitted
under Jewish faith exception to consanguinity limits.
In re May’s Estate, cont. p.68
Marriage recognized in New York or
marriage void in New York? Void under
“natural law” (public policy) and by reason of statute?
NY law prohibits this marriage. But:
No “positive” law in New York state to invalidate foreign
marriage in New York .
Marriage not directly violating
Dissent: N.Y. statute invalidates marriage.
The real dispute: does the father get a surviving spouse’s
statutory share of the estate?
Lanham v. Lanham p.73
Widow seeks support from husband’s(?) estate and heirs object. Widow wins in Wis. Sup. Ct.
Earlier divorce & to marry
replacement – but prohibited by time limit.
Went to adjoining state (Mich) & married
and returned to live.
attempt to marry immediately before death; but, assert common law marriage.
Limiting Wis. statute is not
penal. But, Mich. marriage declared void
& not OK common law.
Again, the ultimate dispute is over
Insurance Proceeds p.76
Para. 2 – re designation of surviving spouse as beneficiary under a
life insurance policy – but who is the surviving spouse?
Result of divorce & not change in beneficiary designation? State law rescue
What if a subsequent spouse? Applicable here?
What if change in domicile (&
What planning considerations here?
Marriage & Public Policy Concerns p.77
Recognition across state lines of:
Polygamy – some foreign jurisdictions recognize validity.
Interracial marriage prohibitions?
Any of these remaining limiting statutes in the U.S.?
Marriage of J.B. and H.B – Texas - p.78
subject matter jurisdiction in Texas court over divorce proceeding in same-sex
marriage which occurred in Massachusetts.
Holding: (1) No subject matter jurisdiction, and (2)
denial not violating 14th Amendment equal protection clause.
Presumed purpose of this
proceeding: to get share of community
not occur if marriage were declared void ab
initio. But, equitable
Marriage of J.B. and H.B – Texas - continued
Texas legal framework: 1) Texas Constitution – marriage only between
a man and a woman.
2) Texas Family Code §6.204 – state
body can not give effect to same sex marriage
(including any claim for protection or a benefit).
Holding that §6.204(c) is a
No requirement of “comity” here. The conflicts rule is
“most-substantial-relationship” test and not place-of-celebration test for
marriage. See p. 84.
DOMA Impact p.86
Defense of Marriage Act – federal
Impact in tax
area? Bankruptcy area?
Is an alternative status available
under state law? Relevance
for DOMA purposes?
Collateral Effects of this Issue p.86
rights (& restrictions but not to opposite sex couples).
Spousal health care benefits.
when artificial insemination, etc.
§211 – tangible property –
governed by law of state where property created.
§214 – language in deed transferring
real estate interpreted under law of situs state.
§216 – capacity to convey land
determined by law of situs.
§217 – formalities of deed as
conveyance determined under the law of situs. Cont.
Property, cont. p.88
§218 – validity of deed as
conveyance is determined under the law of situs of
§219 – capacity of grantee to hold
land is determined by law of situs.
§220 – effect on interests in land of conveyance
determined by law of situs.
§221 – nature of interest in
land determined by law of situs.
Property, cont. p.89
§225 – validity and effect of mortgage
on land is determined by law of the situs of the
§226 – assignment of mortgage on land
determined by law of the situs of land.
§227 – foreclosure process (for
mortgage) determined by law of situs of land.
238 – effect of marriage on land interests determined by law of land situs.
Property, cont. p.89
§245 – inheritance (intestate) of land
– determined by law of state of situs.
Also, §§249, 250 & 251 – re effect
of a last will on land – law of the situs.
§248 – spousal share of land in
divorce proceeding determined by law of situs.
(Texas couple owns Colorado land?)
Burr v. Bechler p.90 Illinois defers to Florida
foreclose on trust deed securing debt on Illinois real estate.
Defendant (she) allegation that (1)
falsely induced to sign note and trust deed (in Florida); (2) not a BFP; and
(3) she was legally not competent (as a woman) to sign documents.
Query as to whether note is valid –
not if the contract became effective in Florida.
Effective when dropped in the U.S.
mail (in Florida).
Thompson v. Kyle
Land in Florida; mortgage and note delivered in
Alabama. Note executed by husband &
Her liability was void in Alabama and
therefore void in Florida (as to her separate property)?
Her domicile in Alabama; her liability
would exist if documents were executed in Florida.
have contracted under Florida law.
Valid obligation of husband – but,
secured by her valid security by her property.
Separate: usurious interest - Alabama law.
Real Property – Why Defer to Situs?
Location, location, location! Immovable.
No physical power over the property if
person/court is in another state (even if clear court jurisdiction over the
Historical reasons - Sanctity of local
real property rules?
Personal Property 1st
§255 - validity of conveyance based on
location of property (chattel) when conveyed.
§256 – form of conveyance based on law
of situs of the property.
§258 – nature of interest in conveyed
property controlled by situs at transfer.
§290 – movables acquired during
marriage – law of domicile at acquisition.
Personal Property 1st
§291 - movables acquired during marriage –
no ownership status change when relocating to another jurisdiction.
§306 – last will – domicile controls
disposition of movables.
§307 – revocation of a will - effect on
movables based on law of domicile at time of death.
Blackwell v. Lurie p.97
firm partner with $1.1 mil. deficiency
judgment under Title 11 (USC).
Domiciled in Missouri; painting on
consignment in New. Mex.; moved to Montana.
Liquidating trustee authorized to
execute on the painting. Petition for writ of execution.
Defense: exempt - owned as tenants
by entirety. Usual rule: exempt
except for joint marital debt.
Trustee - not entirety property under N.M.
Blackwell v. Lurie continued
Which law (Mo. or N.M.) characterizes
this property? Controlled
by the law applicable at time of acquisition, i.e., Missouri.
Under Missouri law – became joint
owners as tenants by the entirety (in 1978).
Not superseded by N.M. community
property law – argument of trustee is rejected.
No public policy limit –requiring N.M.
Held: No imposition of separate property debt against
tenancy by the entirety property.
Morson v. 2nd Natl. Bank
of Boston p.101
Share certificate delivered to transfer agent
with request by estate administrator to transfer shares into “donee’s?” name.
Injunction sought to preclude transfer (& stock reverts to estate).
Attempted gift transfer in Italy
(where Uniform Stock Transfer Act not applicable), but substance of transfer
rules are satisfied.
Italy law not applicable and he completed the transfer of
the shares (cf., the certificate).
See Restatement, §53, comment d.
Transfer of Ownership of Chattels p.103
What effect on ownership of chattels
when a change of domicile occurs?
Corporate shares – appropriate to
distinguish between the certificates and the corporate shares themselves?
Perfecting a security interest in
chattels under UCC Article 9: where file
the “financing statement”?
Question (6) p.103
Property held in trust:
Chattels in another state – law of state where chattel is
located when trust is created.
Choses-in-action – where transaction occurs.
Validity of testamentary trust
– based on domicile at the
time of death.
Law for administration of trust
– where the administration is located.
Planning: identify the “choice of law.” Move to trust friendly state; e.g. rule
recognition of a foreign corporation – incorporation to be recognized in all
§155- status of incorporation –
determined by law where the incorporation is sought.
§165 – power of a foreign corporation
– as prescribed under the law where it is organized.
§182 – title to the shares is governed
by the law of the state of incorporation.
§183 – participation in management
& profits – governed by law of state of incorporation. Cont.
§187 – director’s & shareholder’s liabilities
– governed by law of state of incorporation.
§188 – possible directors’ liabilities
for acts within the state.
§190 – state of incorporation imposing
liabilities on shareholders for creditor obligations. When?
§191 – liability on the shareholder is
imposed by the foreign state where participation in the act.
§205 – reincorporation in another
state – governed by law of 1st state of incorporation.
McDermott v. Lewis p.107
Panamanian corp. & 92% Delaware
owned sub. (resulted from an inversion transaction for
U.S. income tax purposes). Louisiana main offices.
Del. Sub owns 10% interest in Pan. parent.
Can Sub vote these shares in Parent
shareholders of Del. Sub. challenge
this voting by Sub.
Lower court: Del sub could not vote its shares in
Parent (Panama) corp.
McDermott v. Lewis p.107, continued
Under Del. or La. law the Panama
shares held by Del. Sub. could not be voted by
Panama law does permit this
vote by Sub.
relevance of the “internal affairs” rule?
to corporation-shareholder issues.
Delaware conflicts rule: defer to the jurisdiction of incorporation,
i.e., here Panama, where dispute concerns voting rights in Parent.
Cf., using law
of state where “major contacts.”
Irving Trust v. Maryland Casualty P.112
Trustee in bankruptcy pursues
transferees of bankrupt Del. corp. with business in New York.
Corp indebted to four surety companies and promised to transfer certain
property to these surety companies.
fraudulent conveyances to these creditors in anticipation of bankruptcy.
N.Y., N.J., Fla. & Missouri.
N.Y. proceeding – decree to reconvey property
to corp. In personam jurisdiction.
“Pseudo-foreign” or “tramp” corps. P.115
Should forum state apply its own law
to foreign organized corp. engaged exclusively in activities in the forum
E.g, to prevent
“stock watering”? See p. 115.
“Commercial” or “economic” domicile
may be the forum state – and then is the state of incorporation illusory as
relevant for determining rights?
Possible Problems in Internal
“piercing the corporate veil”?
See page 115-6. Consider these
possible issues when Del. Corp engages in significant activities in another
Access to corporate books
Access to shareholder list
State securities laws
Federal Pre-emption Concerns p.116
Federal law preempting state law:
Federal bankruptcy laws
Sarbanes-Oxley (SOX) – re Public Company Accounting – re
board composition, etc.
Dodd-Frank – Wall Street Reform and Consumer Protection
state corporate laws.
European Union corporate law p.116
EU countries moving towards an
“internal affairs” doctrine and away from the “real seat” (or primary offices)
rule for determining applicable governing corporate law.
See decisions of the European Court of
Justice (ECJ) concerning these matters.
Consider the EU incorporation
option: the Societas
Europaea (or “SE”) (to have a “registered office in
one of the EU states).
Wrinkles in the Theory
Is the issue “contract” or “tort”? (Carroll Ala/Miss RR case)?
Is the issue real property law or law
governing a promissory note? (Burr-Beckler case). I.e., property location vs. place the note
In each situation the characterization
of the transaction will determine the conflicts rule (and substantive law)
which is applicable.
Haumschild v. Cont. Casualty Co. P.117
Wisconsin domiciled wife sues
Wisconsin domiciled husband in Wis. court for negligence in California
Issue re inter-spousal
liability for tort.
Options: – forum state (Wis., permits
action); place of tort (Cal., not permitting action); or, state of domicile
(Wis., permits action).
Holding: situs of the domicile
as controlling for determining “capacity to sue” a family member.
Marital/family law trumps! continued
Haumschild v. Cont. Casualty Co.,
Reaffirming that the substantive rights in a tort action are determined
at the place of wrong.
Concurring opinion seeking to apply California’s conflict of laws
rules? Re: determining capacity to sue – at domicile.
Rejection of the renvoi doctrine (p. 119).
Concurring opinion: Overruling prior Wis. precedent without an
Dèpecage p.121 Splitting Conflict Issues
issues exist and (2) different jurisdictional laws control each issue.
tort rules determined under California
issue determined under Wisconsin law.
Does this approach promote equity?
Choice of Law Squared
Consider that under choice of law
rules the law of the place of contracting governs the
interpretation of the contract.
But, does this also mean that the law
of the place of contract mandates the use of the choice of law rules in
that “contracts state”?
E.g., State A
laws say look to State B and State B laws say look to State A.
Reject this “renvoi”
Estate of Damato
N.J. probate proceeding and Fla.
savings accounts. N.J. judge says (1)
governed by law of Fla. and (2) under the Totten (tentative) trust rule,
accounts pass to son Philip at death.
Intervivos trust is
governed by situs law.
(ineffective) transfer under N.J. law.
Trial Judge says the law of Florida
applies (& substantive law to cause title passage to Philip).
Estate of Damato
But, does Fla. conflicts law
refer this issue to the domicile (where the trust accounts concept is invalid)?
However, does N.J. law then refer this
matter to Florida for the substantive law? Renvoi approach applicable?
Trial Judge correctly determined that Florida substantive law applied
(but not the Fla. conflicts law). Apply
conflicts law of the forum.
University of Chicago v. Dater p.125
a loan with Illinois property as collateral. Notes to be payable in Illinois. Documents signed in
Michigan and mailed to Illinois and some defects were then removed and the
funds were loaned. One male borrower dies and the widow become
borrower of a portion.
action and decision for widow.
No liability for widow in Michigan but
liability in Illinois – was obligation accepted in Illinois?
University of Chicago v. Dater continued
Conflict of laws issue involves the capacity
of widow to enter into the contract.
Under (1) Michigan law the law of the
case is governed by Illinois law, but (2) under Illinois law the law of the
matter is Michigan law.
Under Illinois law refer to Michigan law and no capacity of the widow
under Michigan law and no enforceability.
Note dissent (p. 127): Place contract was made was Illinois & an
Illinois contract & valid.
Renvoi issues p.131
Should the forum apply its own law by
P. 131 – doctrine of renvoi is accepted for (1) real property and (2) marriage
But, should the situs
state always have its law applicable in the real estate context?
Substance vs. Procedure p.132
Traditional approach: choice of law rules apply only to issues
characterized as “substantive” (rather than “procedural”).
Procedure is governed by the law of
the forum – usually! Based on a “rule of
But, how delineate between “substance”
§584 – forum determines whether
the question is substance or procedure.
§585 – matters of procedure are
governed by the law of the forum.
§588 – forum determines who may/must
sue and be sued.
§594 – forum determines whether trial
to the bench or the jury.
§595 – forum law determines proof, presumptions and
cont. re: Procedure p.133
§596 – witness – competency and
credibility determined by law of the forum.
§597 – evidence rules determined at
§600 – execution of judgment –
controlled at the forum.
§606 – limitation on amount
recoverable – controlled by forum limit, even though greater amount might be
recoverable where cause of action arose.
See next slide
Substance vs. Procedure Examples
Form of action
Service of process
Proper & necessary parties
Pleading, joinder & splitting
Trial by judge or jury
Competence and credibility of
Admissibility of evidence
Execution of judgments; Appellate process
Sampson v. Channell
p.133 1st Cir.
Car collision in Maine; tort suit in Fed.
Dist. Ct. – Mass. in diversity action.
Husband’s action – Defendant
(testator) was negligent, but plaintiff contributory negligent.
Whose burden to show contributory
negligence on the plaintiff (defendant – Mass law) or on defendant (on
plaintiff – Maine law)?
that under Erie RR Co. Fed. Dist Court
must follow state law in diversity case concerning burden of proof. Cont.
Sampson v. Channell
This situation does necessitate the
application of the Erie RR Co. rule.
Cf., Swift v. Tyson.
Burden of proof as to contributory
negligence is a matter of substantive law for Erie purposes.
In local Mass. proceeding application of Mass. law re burden of proof on
2) This rule is not violating U.S.
Fed. Ct. in diversity action to use Mass. law.
Reversed so as
to correct the jury instructions.
O’Leary v. Illinois Terminal RR p.138
judgment for personal injuries sustained in Illinois auto accident.
Challenge re who
has burden of proving contributory negligence (or no such negligence).
that Plaintiff has burden to disprove contributory negligence.
Holding of Mo.
Sup. Ct.: Burden of proof is substantive and not procedural; an essential element
of the right to recover damages.
Illinois rule applies: Plaintiff has the burden.
Issues: Substantive vs. Procedural p.141
Statutes of fraud
Statutes of limitation
Burdens of proof, privilege, and parol
Joinder, counterclaim, setoff,
impleader, right to jury trial.
Survival/revival of a cause of action
Equitable relief and remedy questions
Grant v. McAuliffe
plaintiffs injured in Arizona auto accident by Cal. resident who died from
Tort action against deceased’s estate
survives in California;
does not survive in Arizona (unless the proceeding was commenced
occurring in California courts.
Holding: Question re survival of action is procedural
– governed by the law of the forum.
“Survival” relates to procedure. Really?
Plus, all parties in California. Sensible result?
Statutes of Limitation
1st Restatement on
§603 – forum statute of limitations can
bar the action (even though not barred at the situs).
§604 – foreign (situs)
statute of limitations does not bar action at forum where S/L in
§605 – time limitation imposed on
cause of action bars actions wherever sought.
Duke v. Housen
Plaintiff alleges gross negligence,
jury award and judgment; defendant on appeal asserts that 3 year NY statute of
limitations bars this action.
Forum is Wyoming; tort in D.C. and multiple other
jurisdictions. Incident in April 1970.
Re S/L – “borrowing statute” says
refer to laws of state where cause of action arose.
When did statute of limitations start
At time of
act; not discovery of injury.
Duke v. Housen
Tolling of S/L applicable? No. Part of each statute which is borrowed. E.g., New York – absence from N.Y. does not
toll S/L – since still subject to N.Y jurisdiction based on N.Y tort.
Same for other
Dissent (p. 154) (do not dismiss
Some relevant states had four year S/L.
Defendant has burden (not proved) to show S/L of each state enabled
relief to Defendant.
(maritime statute) in U.S. Dist. Ct. (not a state court).
Case under the
Panama Labor Code.
S/L – one yr.
for Panama law or longer in U.S.?
U.S. (federal law) has no “borrowing
Panama S/L was procedural (since not part of a single statute) and,
therefore, S/L at the forum (for longer) applied (and the matter could
Statutes of “Repose”
a cause of action after lapse of a specified period of time.
E.g., for torts discovered after a
Statute of repose is treated as
substantive (rather than as procedural) and can bar a proceeding.
1st Restatement, §612 – no
action can be maintained in the forum state on a cause of action arising in
another jurisdiction if that action would be contrary to the “strong public
policy” of the forum state.
Marchlik v. Coronet
Illinois Ct. dismisses actions against
two insurance companies. Constitutional issues.
Wisconsin “direct action” statutes
permits suits directly against insurance companies.
Does Illinois public policy preclude
direct action against insurer in Illinois court when a “no action” clause is in
However, does the “full faith &
credit” clause force this action in Illinois?
procedural right? continued
Marchlik v. Coronet
Wis. Ct. has said substantive right
created for direct action by injured party against insurer.
Here Ill. Ct. says the Wis. direct
action right is substantive – but, query re public policy?
No statutory prohibition vs. direct
action in Ill.
Ill. rule of
no disclosure of insurance coverage.
directly contrary to Illinois no action treatment – & violation of
public policy & no violation of full faith & credit clause.
Holzer v. Deutsche RG
Employment contract – German national
& Germany based services for German company.
Plaintiff discharged for religious
1st count -New York Ct.
says not a cause of action & for dismissal on this ground.
2nd count – action on
damages claim for agreed damages where not able to
N.Y. Ct. says fact question for 2nd
Holzer v. Deutsche RG
Is the N.Y. court condoning Nazi
doctrine, i.e., the Aryan laws of Nazi Germany are not contrary to local public
What if the employer was required to
act as it did? A
violation of a public policy?
1st Restatement, §610 – re
foreign public right: no action can be maintained on a right created by the law
of a foreign state for furthering its own governmental interests.
1st Restatement, §612 – No
action can be maintained to recover a penalty the right to which is given
by the law of another state.
Paper Products v. Doggrell p.164
Proceeding in Tenn. against two
shareholders personally for debt of Arkansas corporation where failure by 3rd
shareholder to file corp. certificate in local Arkansas courthouse.
Ark. law says shareholders liable when
failure to completely comply with organizational rules.
Tenn. court says this provision is penal
and not to be enforced in Tennessee re public policy.
See Petition to Rehear and reference
to U.S. 6th Circuit decision in similar case (as not penal).
Penal Enforcement Restriction Examined
Why not enforce another state’s penal
Was the Arkansas statute (in Paper
Products) really a penal statute?
Could Arkansas partner sue Tenn.
partners for contribution to pay a judgment?
P. 170: See Restatement rule re no enforcement of
another state’s revenue laws as being penal.
Question re legitimacy of tax imposition?
Proof of Foreign Law
jurisdiction in Okla. Fed. Dist. Ct.
Personal injury in Turkey because of
air transport negligence of Defendant.
Injury in the course of employment –
duty to use ordinary care under the laws of Turkey(?).
No evidence of governing Turkish law.
Plaintiff has burden of going forward
with proof of Turkish law. Defendant
says no proof of governing foreign law. continued
Proof of Foreign Law
Tidewater, cont. p.170
Choices in absence of proving foreign
Apply law of forum.
Presumption as to foreign law.
Foreign law proof issue: fact or law?
Assume Turkey as a civilized country which facilitates compensation in
FRCP 44.1 – court’s determination of
foreign law treated as a ruling on a question of law. Cont.
Proof of Foreign Law
Choices for proving foreign law:
Expert testimony and affidavits from foreign
government officials, & U.S. experts?
Use a “certification” technique (seeking
advice from another
court, e.g., in a diversity action?
Difference between another U.S. state (full faith & credit clause)
and a foreign country?
The Traditional System Summarized
Court must characterize issues into
Court must “localize,” e.g., decide where the tort occurred (e.g., the
“last act” rule).
Court must apply the local rule (after
identifying the locale
and the pertinent local rule).
Does a public policy exception apply?
Should renvoi be used/rejected? Cont.
The Traditional System Summarized,
Should another choice of law “system”
What should be the objectives?
Ease of application?
Accommodation to state
Does traditional system meet these