Lecture 17 Mar. 14, 2018

1st Restatement/vested rights theory Torts: Ala. , Ga. , Kan. , Md 1st Restatement/vested rights theory Torts: Ala., Ga., Kan., Md., NM, NC, SC, Va, WV

Interest Analysis

Currie – lex fori in true conflicts torts: Ky., Mich.

comparative impairment torts: Cal., DC

choice-influencing considerations/better law torts: Ark. , Minn choice-influencing considerations/better law torts: Ark., Minn., NH, RI, Wisc.

2nd Restatement torts: AK, AZ, CO, CT, DE, FL, ID, IL, IA, ME, MS, MO, MT, NE, NV, NJ, OH, OK, SD, TN, TX, UT, VT, WA, WY

Neumeier rules torts: NY

significant contacts combined modern

Problems Old and New

dépeçage

renvoi désistement

2nd Restatement Renvoi 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

Pfau v Trent Aluminum Co. (NJ 1970)

First, it is not definite that plaintiff would be unable to recover in either of those states. More importantly, however we, see no reason for applying Connecticut's choice-of-law rule. To do so would frustrate the very goals of governmental-interest analysis. Connecticut's choice-of-law rule does not identify that state's interest in the matter. Lex loci delicti was born in an effort to achieve simplicity and uniformity, and does not relate to a state's interest in having its law applied to given issues in a tort case.

What role should an interest analysis jurisdiction give to the choice-of-law rules/decisions of another jurisdiction?

§ 8 Applicability of Choice-of-Law Rules of Another State (Renvoi) (1) When directed by its own choice-of-law rule to apply “the law” of another state, the forum applies the local law of the other state, except as stated in Subsections (2) and (3).

1) interest objective (given policies) 1) interest objective (given policies) - so do not take into account any jurisdiction’s choice of law rules for interest analysis - but may do so to decide true conflict

2) interest subjective - so may be able to take into account an interest analysis jurisdiction’s claim that it has an interest - but do not take into account a 1st Rest jurisdiction’s choice of law rules for interest analysis (but may do so to decide true conflict)

Kramer: a state’s approach to choice of law by definition establishes the state’s rule of interpretation for questions of extraterritorial scope..

BUT must distinguish - a decision about a rule of scope BUT must distinguish - a decision about a rule of scope - always binding - and a decision about a rule of priority - never binding

- CA court is entertaining an action brought by a NY guest against an Ontario host concerning an accident in Ontario - NY court would apply Ontario law - does that mean that a CA ct cannot apply NY law?

Is the 1st Rest about scope or priority?

What happens if both jurisdictions say that the case is not within their law’s scope?

Green: don’t tell other jurisdictions about whether and when their choice-of-law rules are binding. ask them!

American Motorists Ins. Co. v. ARTRA Group Inc (Md. 1995)

complex litigation

In re Air Crash Disaster near Chicago (7th Cir. 1981)

Filed in: Ill, CA, NY, Mich, Hawaii, PR P’s domiciles: CA, CT, Hawaii, Ill, Ind, Mass, Mich, NJ, NY, VT, PR, Japan, Netherlands, Saudi Arabia D’s domicile: McDD: MO, American (NY or TX) Place of harm: Ill. Place of wrongdoing: McDD (CA – designing), American (OK – servicing) Punitives: Yes - MO, TX, OK No – Ill, CA, NY

Illinois – 2nd Restatement

§ 146. Personal Injuries In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

§ 145. The General Principle (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

McD.-D Ill – place of inj. Ca – place of misconduct by D Mo – D’s domicile P’s domicile?

We next turn to the interests of the states of domicile of the plaintiffs. The domiciliary states do not have an interest in disallowing punitive damages because the decision to disallow such damages is obviously designed to protect the interest of resident defendants, not to effectuate the interest of the domiciliary states in the welfare of plaintiffs. Nor do the domiciliary states have an interest in imposing punitive damages on the defendants. The legitimate interests of these states, after all, are limited to assuring that the plaintiffs are adequately compensated for their injuries and that the proceeds of any award are distributed to the appropriate beneficiaries. Those interests are fully served by applying the law of the plaintiffs' domiciles as to issues involving the measure of compensatory damages (insofar as that law would enhance the plaintiffs' recovery) and the distribution of any award. Once the plaintiffs are made whole by recovery of the full measure of compensatory damages to which they are entitled under the law of their domiciles, the interests of those states are satisfied.

Finally, application of Illinois law comports with the general criteria of the Restatement (Second) which emphasize certainty, predictability, uniformity of result, and ease in the determination and application of the law to be applied. In this case, it is important to resolve the conflict between states by a principled means. Determining that all other factors being equal, the law of the place of injury shall be used, provides a principled means of decision which also creates certainty. Future defendants cannot predict, of course, where airplane disasters will occur. But air transportation companies will now be on notice that, under the "most significant relationship" test, when there is a true conflict between laws of states having equal interests in the issue of punitive damages, and when the place of injury has a strong interest in air safety and in protection of air transportation corporations, the law of the place of injury will apply.

American Ill – place of inj American Ill – place of inj. OK – place of misconduct by D NY – D’s domicile

California - comparative impairment

McD.-D Ill – place of inj. Ca – place of misconduct by D Mo – D’s domicile

American Ill – place of inj American Ill – place of inj. OK – place of misconduct by D NY – D’s domicile

NY Neumeier rules

Michigan interest analysis with a strong lex fori approach

PR Hawaii

In re Agent Orange (EDNY 1984)

certifying class actions with choice of laqw problems

federal common law?

Kramer: “If choice of law is substantive (in the sense that it defines the parties' rights), then courts should not alter choice-of-law rules for complex cases. The reasoning is straightforward. We start with claims that everyone concedes would otherwise be adjudicated under different laws. We combine these claims, whether through transfer and consolidation or by certifying a class, on the ground that we can adjudicate the parties' rights more effectively and efficiently in one big proceeding. So far, so good. Then, having constructed this proceeding, we are told we must change the parties' rights to facilitate the consolidated adjudication. And that makes no sense. If the reason for consolidating is to make adjudication of the parties' rights more efficient and effective, then the fact of consolidation itself cannot justify changing those rights. To let it do so is truly to let the tail wag the dog.”