Conflict of Laws Michael Green 221-7746 Office: 260 office hours: MW 11:30-12:45 or by appt.

Personal jurisdiction Choice of law Recognition of foreign judgments

An Oregonian goes to California, where a Californian punches him An Oregonian goes to California, where a Californian punches him. He returns to Oregon and sues the Californian in Oregon state court. 1) Does the court have power over the Californian? 2) What law should the court use? 3) If it issues a judgment for the Oregonian, must a California court recognize it?

Personal jurisdiction Choice of law Recognition of foreign judgments Constitutional Sub-constitutional

Prosser: “The realm of the conflict of laws is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon. The ordinary court, or lawyer, is quite lost when engulfed and entangled in it.” Kim Roosevelt: “Choice of law is a mess.” William Reynolds: “Choice of law today, both the theory and practice of it, is universally said to be a disaster. The agreement on that proposition, among all branches of the profession, is nearly universal. “ Joseph William Singer: a “confusing morass”

choice of law

What are you doing when you do choice of law?

- a Pennsylvania husband and wife get into a car accident in New York - the wife sues the husband in state court in Vermont - Pennsylvania has interspousal immunity; NY and Vermont do not

it’s statutory interpretation: the Vermont court is trying to determine whether Pennsylvania officials want their interpousal immunity law to apply to Pennsylvania couples who get into accidents out of state...

it’s international law: there is a division of lawmaking authority that transcends states (and nations) - Vermont does not have the power to determine the capacity of Pennsylvanians to sue one another after having accidents in New York

it’s procedure: the Vermont court needs to choose whether New York or Pennsylvania law should be used, and it has its own rules (like its rules for service or joinder) to make that choice

maybe it’s just normal lawmaking: the Vermont court has the power to create a rule of substantive law for the case, but it chooses to borrow standards from New York or Pennsylvania law when creating that law

the traditional approach

Alabama Great Southern RR Co v Carroll (Ala. 1892)

§ 386. Liability To Servant For Tort Of Fellow Servant The law of the place of wrong determines whether a master is liable in tort to a servant for a wrong caused by a fellow servant. § 377. The Place Of Wrong The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.

statutory interpretation

“Section 2590 of the Code, in other words, is to be interpreted in the light of universally recognized principles of private, international, or interstate law, as if its operation had been expressly limited to this state, and as if its first line read as follows: ‘When a personal injury is received in Alabama by a servant or employee,’ etc.”

interest analysis

what if the Alabama statute had said that it applied to injury out of state?

international law

Story: [E]very nation possesses an exclusive sovereignty and jurisdiction within its own territory. The direct consequence of this rule is, that the laws of every state affect, and bind directly all property, whether real or personal, within its territory; and all persons, who are residents within it, whether natural born subjects, or aliens; and also all contracts made, and acts done within it…. Another maxim…is that no state or nation can, by its 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.

territorialism

assume everything happened in Alabama: Plaintiff and Defendant were from Alabama, the fellow employee’s wrongdoing was there, and the harm occurred there can Mississippi law extend to the matter?

but here the wrongful act was in Alabama while the harm was in Mississippi – why does Mississippi law apply?

“Up to the time this train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The fact which created the right to sue, the injury, without which confessedly no action would lie anywhere, transpired in the state of Mississippi. It was in that state, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all, or not, must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied on to justify a recovery transpired.”

what jurisdiction’s law determines the existence of contractual duties?

Another consideration… it is insisted, entitles this plaintiff to recover here under the Employers' Liability Act for an injury inflicted beyond the territorial operation of that act. This is claimed upon the fact that at the time plaintiff was injured he was in discharge of duties which rested upon him by the terms of a contract between him and defendant which had been entered into in Alabama, and hence was an Alabama contract... [The plaintiff’s] theory is that the employers' liability act became a part of this contract, that the duties and liabilities which it prescribes became contractual duties and liabilities, or duties and liabilities springing out of the contract, and that these duties attended upon the execution whenever its performance was required, in Mississippi as well as in Alabama, and that the liability prescribed for a failure to perform any of such duties attached upon such failure and consequent injury wherever it occurred, and was enforceable here, because imposed by an Alabama contract…

under the traditional territorial approach, how does a jurisdiction get personal jurisdiction over a defendant?

assume the facts of the Carroll case all occurred in Ala (including the harm) Carroll sues Ala. Gt. Southern in Mississippi state court PJ is due to the RR’s property in Miss does the Miss state court have the power to apply Miss law?

Story: From these two maxims or propositions there flows a third Story: From these two maxims or propositions there flows a third . . . that whatever force and obligation the laws of one country 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.

vested rights theory

Beale: Law being a general rule to govern future transactions, its 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. Thus, an act valid where done cannot be called into question anywhere.

Beale: [T]he territorial law has the right to make such rules as it pleases for the solution of the conflict of laws. . . .