1. Lecture 5 Jan. 24, 2018

2. domicile

3. § 15. Domicil Of Choice
(1) A domicil of choice is a domicil acquired, through the exercise of his own will, by a person who is legally capable of changing his domicil.
(2) To acquire a domicil of choice, a person must establish a dwelling-place with the intention of making it his home.
(3) The fact of physical presence at a dwelling-place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicil takes place.

4. § 10. Domicil By What Law Determined (1) A question of domicil as between the state of the forum and another state is determined by the law of the forum.

5. marriage

6. § 121. Law Governing Validity Of Marriage
Except as stated in §§ 131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with.

7. § 132. Marriage Declared Void By Law Of Domicil
A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases:
(a) polygamous marriage,
(b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil,
(c) marriage between persons of different races where such marriages are at the domicil regarded as odious,
(d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.

8. 2nd Rest § 283(2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.

9. § 134. Marriage Contrary To Public Policy
If any effect of a marriage created by the law of one state is deemed by the courts of another state sufficiently offensive to the policy of the latter state, the latter state will refuse to give that effect to the marriage.

10. corporations

11. characterization

12. Levy v. Daniels’ U-Drive (Conn. 1928)

13. was the plaintiff (Levy) a party to the contract?

14. The contract was for the “direct, sole, and exclusive benefit” of the plaintiff, who is alleged to have been injured through the tortious operation of the automobile rented by the defendant to Sack. The right of the plaintiff as a beneficiary of this contract to maintain this action is no longer an open question in this state. The contract was made for him and every other member of the public. …The assent of the beneficiary, if required, is manifested in his action upon the contract.

15. Haumschild v Continental Cas Co. (Wisc. 1959)

16. imagine California allowed liability and Wisc. refused it…

17. Emery v. Emery (Cal. 1955)

18. Haumschild: “While the appellant's counsel did not request that we overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin case dealing with this particular conflict of laws problem, he did specifically seek to have this court apply California's conflict of laws principle, that the law of the domicile is determinative of interspousal capacity to sue, to this particular case. However, to do so would violate the well recognized principle of conflict of laws that, where the substantive law of another state is applied, there necessarily must be excluded such foreign state's law of conflict of laws.”

19. renvoi désistement

20. contract or property?

21. Swank v Hufnagle
Ohio woman guaranteed husband’s debt with promissory note, executed in Ohio, and backed up by security interest on Indiana land
Ohio allowed woman to be surety for their husbands
Indiana did not
suit in Indiana to enforce security interest
characterization?

22. Burr v Beckler
in Florida, Illinois wife guaranteed husband’s debt, backed up by security interest in Illinois property
Florida had prohibition on wives acting as surety
Illinois didn’t
suit in Illinois to enforce security interest
characterization?

23. are Swank v Hufnagle and Burr v Beckler compatible?

24. Thomson v Kyle
Alabama woman executed promissory note in Ala backed up by mortgage on land in Florida
wives can’t be surety under Ala law
they can under Florida law
suit in Florida to enforce security interest
characterization?

25. Caldwell v Gore
D erected dam on La property
Obstructed flow of water upstream to P’s property in Ark
La had servitude of lower land to higher to receive water flow freely
Ark law allowed obstruction if reasonable etc.

26. substance/procedure

27. Grant v McAuliffe (Cal. 1953)

28. how to tell whether a rule is substantive or procedural (or both)?

29. spheres of exclusive regulatory authority does the rule regulate primary activity or litigation?

30. interests of forum/other sovereign?

31. modern approaches – largely purposive

32. problem: when would a New York court indicate when a non-New York court should use procedural rule with a New York cause of action?

33. 1st Rest. – largely formalistic

34. § 592. Procedure In Court The law of the forum governs all matters of pleading and the conduct of proceedings in court.   § 594. Mode Of Trial The law of the forum determines whether an issue of fact shall be tried by the court or by a jury.   § 596. Witnesses The law of the forum determines the competency and the credibility of witnesses.   § 597. Evidence The law of the forum determines the admissibility of a particular piece of evidence.

35. P ships goods in Mass using D as transport
P received printed bill of lading which contains limitations on liability
Under law of Mass, this bill is not sufficient to show that P assented to limitation
Under law of NH, it is, although the inference is rebuttable
P sues D in NH
Should court assume that liability is limited?

36. § 595. Proof Of Facts
(1) The law of the forum governs the proof in court of a fact alleged.
(2) The law of the forum governs presumptions and inferences to be drawn from evidence.

37. exceptions to 1st Rest. formalism

38. parol evidence rule

39. § 599 Integrated Contracts When a contract is integrated in a writing by the law of the place of contracting, no variation of the writing can be shown in another state which could not be shown in a court in the place of contracting under the law of that state, whatever the law of the other state as to integrated contracts.

40. burdens of proof

41. P, in state Arizona, is injured by the alleged negligence of D
P, in state Arizona, is injured by the alleged negligence of D. P sues D in state California. By the law of Arizona, a plaintiff has no cause of action until he has shown that his own negligence did not contribute to his injury. By the law of California, contributory negligence is an affirmative defense to be pleaded and proved by the defendant.
Must P show freedom from contributory negligence?

42. Comment to 595
Thus, if a requirement concerning proof of freedom from fault exists in the law of the place of injury and if such condition is there interpreted as a condition of the cause of action itself, or as affecting the nature or amount of recovery, the court at the forum will apply the rule of the foreign state (see § 385). In such a case, the remedial and substantive portions of the foreign law are so bound together that the application of the usual procedural rule of the forum would seriously alter the effect of the operative facts under the law of the appropriate foreign state.

43. limitations on damages

44. Section 412
The measure of damages for a tort is determined by the law of the place of wrong.

45. § 606. Limitation Of Amount Recoverable
If a statute of the forum limits the amount which in any action of a certain class may be recovered in its courts, no greater amount can be recovered though under the law of the state which created the cause of action, a greater recovery would be justified or required.

46. Such a limitation is imposed only by a statute; and it is a question of interpretation whether the statute qualifies the cause of action, applying therefore only to a cause of action created by the statute, wherever sued on; or whether it is to be construed as limiting the amount of recovery in any action of the type described brought in the state, wherever the right was created; or whether (as in some instances) it has both effects.

47. - Mass (place of plane crash) has a damage limitation of one million for wrongful death - suit is in NY state court - NY has damage limitation for wrongful death of $ ½ million - NY limitation procedural, MA limitation substantive - NY limitation procedural, MA limitation procedural only - NY limitation substantive only, MA limitation substantive - NY limitation substantive only, MA limitation procedural only

48. statute of frauds

49. Marie v Garrison case
Suit in NY concerning oral K entered into in Mo
Both Mo and NY had a statute of frauds
NY law said K’s “shall be void” if not in writing
Mo law said no K action “shall be brought” if oral
Which, if any, applies?

50. P enters into an oral K with D in Missouri
No statute of frauds in Missouri
But Missouri’s statute of limitations on contract actions is two years
P sues D on the contract in New York 3 years after breach
New York has a statute of frauds (substantive) for New York contracts
But its statute of limitations is 4 years for contract actions

51. Kilberg v NE Airlines
Plane crash in Mass
Ticket bought in NY
NY P, Mass D
Mass limitation on damages for wrongful death
Suit in NY
Does the Mass limit on damages apply?

52. direct action (sue directly against insurer)

53. P (CA) and D (CA) get into an accident in CA
P (CA) and D (CA) get into an accident in CA. P sues D’s insurer in NV state ct CA law does not allow direct actions NV law does

54. privileges

55. In Alabama, a business man doing business in Alabama, gives certain information to an accountant, which is not privileged under Alabama local law. The information would, however, be privileged under the local law of Mississippi, the forum.
Is the information admissible?

56. 2nd Restatement
§ 139. Privileged Communications
(1) Evidence that is not privileged under the local law of the state which has the most significant relationship with the communication will be admitted, even though it would be privileged under the local law of the forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
(2) Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.

57. statutes of limitations

58. § 603. Statute Of Limitations Of Forum If action is barred by the statute of limitations of the forum, no action can be maintained though action is not barred in the state where the cause of action arose. § 604. Foreign Statute Of Limitations If action is not barred by the statute of limitations of the forum, an action can be maintained, though action is barred in the state where the cause of action arose.

59. § 605. Time Limitations On Cause Of Action If by the law of the state which has created a right of action, it is made a condition of the right that it shall expire after a certain period of limitation has elapsed, no action begun after the period has elapsed can be maintained in any state.

60. Bournias v Atlantic Maritime Co Ltd. (2d Cir. 1955)

61. Suit in NY on Mass cause of action, 1.5 year wait 1) Mass. 2 yr. subst., NY 1 yr. proc. - preclusive effect of dismissal? 2) Mass. 1 yr. subst., NY 2 yr. proc. - preclusive effect of dismissal? 3) Mass. 2 yr. proc., NY 1 yr. proc. - preclusive effect of dismissal? 4) Mass. 2 yr. subst., NY 1 yr. subst. 5) Mass. 2 yr. proc., NY 1 yr. subst.

62. NY court is trying to determine whether a Mass 2 year stat lims for wrongful death is subst or proc Mass ct applies Mass 2 year stat lims to Mass wrongful death action? Mass ct applies Mass 2 year stat lims to CT wrongful death action with 3-year stat lims? Mass ct refuses to apply Mass 2 year stat lims to NH wrongful death action with 1-year stat lims?

63. - P sues D in state court under FELA
- P sues D in state court under FELA. - FELA has a two-year statute of limitations - The forum state has a three-year procedural statute of limitations - P has waited two and a half years to sue - Is P barred? Atlantic Coast Line Railroad Co. v. Burnette (US 1915)

64. - P sues D in state court under FELA
- P sues D in state court under FELA. - FELA has a two-year statute of limitations - The forum state has a one-year procedural statute of limitations - P has waited one and a half years to sue - Is P barred? - Engel v. Davenport (US 1926)

65. Guar. Trust v. York NY actions brought in federal court in NY NY has a stat of lims of 2 years Can federal court use its own common law lims (laches)? Does it matter whether the NY stat lims is subst. or procedural?

66. A federal court in NY is entertaining a PA cause of action
A federal court in NY is entertaining a PA cause of action. The PA 3-year stat lims is procedural NY has a 2 year procedural stat lims Can the federal court use is own common law stat lims?

67. borrowing statutes