Wed. Feb. 1
characterization
Haumschild v Continental Cas Co.
(Wisc. 1959)
Emery v. Emery (Cal. 1955)
• 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.”
renvoi
désistement
substance/procedure
Grant v McAuliffe
(Cal. 1953)
how to tell whether a rule is substantive or
procedural (or both)?
does the rule regulate primary
activity or litigation?
outcome determinative?
interests of forum/other
sovereign?
modern approaches – largely purposive
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?
st
1
Rest. – largely formalistic
§ 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.
• 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?
• § 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.
exceptions to
st
1
Rest. formalism
parol evidence rule
§ 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.
burdens of proof
• 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?
• 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.
limitations on damages
• Section 412
• The measure of damages for a tort is determined by the law of the
place of wrong.
• § 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.
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.
- 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
statute of frauds
• 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?
• 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
• 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?
direct action (sue directly against
insurer)
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
privileges
• 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?
• 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.
statutes of limitations
§ 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.
§ 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.
Bournias v Atlantic Maritime Co Ltd.
(2d Cir. 1955)
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.
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?
- 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)
- 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)
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?
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?
borrowing statutes
2nd Rest - § 142. Statute Of Limitations
The following § 142 replaces the original §§ 142 and 143:
Whether a claim will be maintained against the defense of
the statute of limitations is determined under the principles
stated in § 6. In general, unless the exceptional
circumstances of the case make such a result unreasonable:
(1) The forum will apply its own statute of limitations barring
the claim.
(2) The forum will apply its own statute of limitations
permitting the claim unless:
(a) maintenance of the claim would serve no substantial
interest of the forum; and
(b) the claim would be barred under the statute of
limitations of a state having a more significant relationship to
the parties and the occurrence.
renvoi
désistement
in re Schneider’s Estate
(Sur. Ct. N.Y. 1950)
• The primary reason for its existence lies in the fact that
the law-making and law-enforcing agencies of the
country in which land is situated have exclusive control
over such land. As only the courts of that country are
ultimately capable of rendering enforceable judgments
affecting the land, the legislative authorities thereof have
the exclusive power to promulgate the law which shall
regulate its ownership and transfer.…
• In re Annesley
• British subject in France dies
• what law governs her movable property
• English choice-of-law rule – law of domicile at death
• French choice-of-law rule –law of nationality
• A French court had decided this issue as follows
• Choose English law, but whole law of England, which referred
back to internal French law
• English court in In re Annesley says, French court was
wrong
• English court would refer to whole law of France
• Section 8. Rule in questions of title to land or divorce.
• (1) All questions of title to land are decided in
accordance with the law of the state where the land
is, including the Conflict of Laws rules of that State.
• (2) All questions concerning the validity of a decree of
divorce are decided in accordance with the law of the
domicile of the parties, including the Conflict of Laws
rules of that State.’
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
• Massachusetts wants marriages celebrated in Mass to
be valid if they are valid according to a standard upon
which the parties might have reasonably relied
• Mass will treat a marriage entered into in Mass as
valid if it is in accordance with Mass law or the law of
the parties’ domicile
• Two Virginians who are cousins get married in Mass
• Marriage is illegal under Mass law but not Virginia law
• Marriage is being adjudicated by a Wisconsin court,
which uses the place of celebration rule
- CA ct is determining validity of will concerning
personalty in CA
- decedent was domiciled in CA at time of
execution of will and executed will in CA
- but decedent was domiciled in NY at time of
death
- CA's choice of law rules is that the domicile of
the decedent at death determines the validity of
a will
- NY wants to protect the expectation of the
testator, so says a will is valid if it is valid under
the law of either the domicile at the time of
execution, or the domicile at death or the place
of execution