Mon. Feb. 20

Hernandez v. Mesa. U.S. border patrol agent named Mesa, in US, shot and killed a Mexican citizen named Hernandez, in Mexico. Bivens action filed by Hernandez’s parents, as successors-in-interest to his estate, alleging excessive force under the Fourth Amendment.

Party Autonomy

Choice-of-law clauses in contracts Choice of law that validates contracts Could be used even when no choice-of-law provisions exists Could be used to choose law other than the law in the choice-of-law clause

Rest 2d § 187. Law Of The State Chosen By The Parties (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.

Whether the parties could have determined a particular issue by explicit agreement directed to that issue is a question to be determined by the local law of the state selected by application of the rule of § 188. Usually, however, this will be a question that would be decided the same way by the relevant local law rules of all the potentially interested states. On such occasions, there is no need for the forum to determine the state of the applicable law.

187(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or

(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

On occasion, the parties may choose a law that would declare the contract invalid. In such situations, the chosen law will not be applied by reason of the parties' choice. To do so would defeat the expectations of the parties which it is the purpose of the present rule to protect. The parties can be assumed to have intended that the provisions of the contract would be binding upon them. If the parties have chosen a law that would invalidate the contract, it can be assumed that they did so by mistake. If, however, the chosen law is that of the state of the otherwise applicable law under the rule of § 188, this law will be applied even when it invalidates the contract. Such application will be by reason of the rule of § 188, and not by reason of the fact that this was the law chosen by the parties.

interest analysis

Harris v. Harris (Ga. 1984) two married but separated Georgians get into car accident in Georgia in which husband is negligent – wife sues does Georgia spousal immunity rule apply?

purposivism textualism

Wis. Stat. § 895.03 (action for wrongful death “caused in this state”)

In Harris v. Harris, does the court takes into account… In Harris v. Harris, does the court takes into account…? avoidance of fraudulent suits marital harmony compensation to wife deterrence of negligent husbands

two married Californians get into car accident in Georgia in which husband is negligent, wife sues does Georgia’s spousal immunity rule apply?

California is interested in its negligence law applying California is interested in its negligence law applying - compensation Georgia is not interested in its spousal immunity law applying

Does the court take all considerations into account: compensation to wife (Ca) deterrence of negligent husbands avoidance of fraudulent suits marital harmony

Millikan v Pratt Mass D contracted with Maine Ps to guarantee D’s husband’s payment Sent by her husband by mail from Mass to Maine D’s husband did not pay Ps demanded of D She refused Mass had law not allowing married women to contract as surety Maine didn’t

true conflicts

Schmillikan v Schpratt Maine D contracted with Mass Ps to guarantee D’s husband’s payment Sent by her husband by mail from Maine to Mass D’s husband did not pay Ps demanded of D She refused Mass had law not allowing married women to contract as surety Maine didn’t

false conflicts

Is it a “false conflict” when each jurisdiction has law with the same content…?

Marie v Garrison Mo K, suit in NY NY’s statute of frauds – no contract shall be valid unless in writing MO statute of frauds – no contract shall be enforced unless in writing

finding false conflicts…

Babcock v. Jackson (NY 1963) NY P – guest in car w/ NY D Crashed into stone wall in Ontario Does Ontario’s guest statute apply?

Dym v Gordon (NY 1965) P and D both NY domiciliaries BUT taking courses at U of Colo Collision with another vehicle (from Kansas) in Colo Does Colo guest statute apply?

How is Dym different from Babcock?

Tooker v. Lopez (NY 1969)

how is Tooker similar to Babcock? How is Tooker similar to Dym?

Does the reinterpretation of the guest statute as concerning fraud really point to the D’s domicile?

Fuld’s concurrence…

Breitel’s dissent

What about Susan Silk?

Schultz v Boy Scouts of America (NY 1985)

conduct-regulating loss-allocating

conduct-regulating…

Creates liability and is conduct regulating…. example Creates liability and is conduct regulating…? example? Blocks liability and is conduct regulating…? example?

loss-allocating

Creates liability and is loss-allocating…. example Creates liability and is loss-allocating…? example? Blocks liability and is loss-allocating…? example?

Is negligence law conduct regulating or loss allocating or both?

Assume that a jurisdiction does not have a cause of action for tortious interference of contract - conduct-regulating? - loss-allocating? - both?

Why is charitable immunity loss-allocating?

Does the common domicile of P and D matter for charitable immunity?

- assume the Schultz’s are domiciled in NY - the Boy Scouts are domiciled in TX - but the scout camp is always in NJ, where the molestation occurs

Why doesn’t New York law apply?

The three reasons most often urged in support of applying the law of the forum-locus in cases such as this are: (1) to protect medical creditors who provided services to injured parties in the locus State, (2) to prevent injured tort victims from becoming public wards in the locus State and (3) the deterrent effect application of locus law has on future tort-feasors in the locus State.

The first two reasons share common weaknesses The first two reasons share common weaknesses. First, in the abstract, neither reason necessarily requires application of the locus jurisdiction's law, but rather invariably mandates application of the law of the jurisdiction that would either allow recovery or allow the greater recovery. They are subject to criticism, therefore, as being biased in favor of recovery.

Finally, although it is conceivable that application of New York's law in this case would have some deterrent effect on future tortious conduct in this State, New York's deterrent interest is considerably less because none of the parties is a resident and the rule in conflict is loss-allocating rather than conduct- regulating.

Kell v. Henderson (N. Y. Sup. Ct Kell v. Henderson (N.Y. Sup. Ct. 1965) Residents of Ontario Trip begins and ends in Ontario Accident in NY Court applied NY law, not Ontario guest statute

Dissent: [T]here can be little doubt that New York has an interest in insuring that justice be done to nonresidents who have come to this State and suffered serious injuries herein. There is no cogent reason to deem that interest any weaker whether such guests are here for the purpose of conducting business or personal affairs, or, as in this case, have chosen to spend their vacation in New York. Likewise, it cannot be denied that this State has a strong legitimate interest in deterring serious tortious misconduct, including the kind of reprehensible malfeasance that has victimized the nonresident infant plaintiffs in this case.

P sues D under a theory of respondeat superior for the torts of the employee. D alleges charitable immunity. P sues D for negligent hiring. D alleges charitable immunity.

“As to defendant Franciscan Brothers, this action requires an application of the third of the rules set forth in Neumeier because the parties are domiciled in different jurisdictions with conflicting loss-distribution rules and the locus of the tort is New York, a separate jurisdiction. In that situation the law of the place of the tort will normally apply, unless displacing it ‘”will advance” the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants’”

For the same reasons stated in our analysis of the action against defendant Boy Scouts, application of the law of New Jersey in plaintiffs' action against defendant Franciscan Brothers would further that State's interest in enforcing the decision of its domiciliaries to accept the burdens as well as the benefits of that State's loss-distribution tort rules and its interest in promoting the continuation and expansion of defendant's charitable activities in that State.

Conversely, although application of New Jersey's law may not affirmatively advance the substantive law purposes of New York, it will not frustrate those interests because New York has no significant interest in applying its own law to this dispute.

Finally, application of New Jersey law will enhance "the smooth working of the multi-state system" by actually reducing the incentive for forum shopping and it will provide certainty for the litigants whose only reasonable expectation surely would have been that the law of the jurisdiction where plaintiffs are domiciled and defendant sends its teachers would apply, not the law of New York where the parties had only isolated and infrequent contacts as a result of Coakeley's position as Boy Scout leader.