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Traditional Approaches to Horizontal Choice of Law

(introduction/Class 1 = Keeton v Hustler)
Keeton v Hustler Discusses procedural v substantive inquiry Mentions 5 CoL considerations: predictability; relationships among the states; simplification; forum interests; sounder rule approach

I. What are we looking for in a CoL system? Examples
a. Predictability [for litigants]
b. Uniformity
c. Ease of application
d. Respect for state sovereignty (vested rights largely looks to this)
e. Respect for state policy
f. Justice for parties
g. Party expectations
h. Better law
II. Domicile
a. Def: includes mutual obligation between state and individual
b. State of domicile at death is controlling law
i. Standard: Mined + left behind →
1. Abandoned (physical travel to new domicile) + manifested intent to remain
2. Note: objective + subjective elements
c. Test established in White v Tennant (WV 1888)
i. Family farm extends over WV/PA borders; husband went to WV on same property to care for wife, planned on going back on the same day ii. H: PA law controls iii. Note: siblings still live in WV, may be favoring forum even though the court doesn’t seem to be….still is room to play
d. Test maintained in Maksym v Board of Election Comm’rs of City of Chicago (BB…Rahm Emanuel Case)
i. *Once a domicile is established, presumption that you retain it until you create a new domicile ii. Rejects interpretation of “actually lived” iii. Intent is unclear (including to Rahm)…may just be following opportunity iv. Maybe: domicile can be different for different purposes
III. Torts (territoriality)
a. First view (Story) = territoriality
i. Exclusive jurisdiction within events that happen within one’s own territory ii. Focus on voluntary nature→comity/cooperation
b. Next (Beale) = vested rights [same outcome]
i. Lex loci delicti: law of place where the last bad act occurs applies ii. Pros/Cons (from found outline)
1. Pros:
a. Often easy to apply
b. Predictable
c. Lex loci often only common geographic factor to both parties (not in Carroll thoruhg)
d. Party neutral
2. Cons:
a. Lacks values of flexibility/common sense that may result in unfair treatment
b. For defamation suits (other intentional torts): tortfeasor may be able to select the state to commit tort w/ an eye towards potential liability….forum shopping
c. How to apply traditional methodology: 2 steps:
i. 1: ask what relevant person/place/event happens? ii. 2: localize it
1. nb: place of injury is tough to localize in defamation (where is reputation located? There are different parts to it: personal/emotional/business)
a. where is a pseudonym located?
d. Alabama Great Southern RR Co v Carroll (AL 1892)
i. F: RR; chain links broke; injury
1. Interests:
a. MS: place of injury
b. AL: plaintiff –ee; D RR corp; negligence ii. MS law applies because the injury occurred in MS, so that’s where the rights vest
e. Pros: ease of application + clarity (often tough to localize negligence)
f. [3] Exceptions to where injury occurs standard (she blew through these, not totally sure)
i. acted in A on reliance of As law and goes into B ii. same, w/ legal obligation in A, + causes injury in B iii. vicarious liability for an –ee and –er liabile under B law if a worker goes into B not at –er’s discretion
IV. Contract
a. Vested rights for K: law at the place of contracting (making)
i. i.e. K’s validity is determined by the law of the state in which the K is made; if K is valid there, it’s valid everywhere and an action on the K is sustained even in a state that doesn’t recognize the K
b. Place of formation: Milliken v Pratt
i. Wife in MA binds husband to a ME K that was sent through the mail ii. Uncertainty about what constituted performance
1. Res of Conflict of Laws §332 (1934) [pp21-22]= K validity (vs §358 = performance)
c. State interest is less when parties have = bargaining power
d. From K…did parties have a justified expectation that the K would be enforced?
e. Exception: question of the manner of Performance, and not just the duty to perform
i. → then law of place of performance applies ii. Louis-Dreyfus (she discussed this with us in class; K signed in MN for shipper to take wheat from MN to Montreal, via Ontario…one ship sank btwn Montreal + Ontario)
1. Conflict: common law held shippers liable; USA statute held no liability for shippers exercising due diligence, but only if one port in USA; Canada statute also held no liability for shippers exercising due diligence
2. H (Hand): Canada law applies to K as place of performance
a. Because sinking involved the manner of performance, and not the duty to perform (which would be place of formation)
f. Unclear line as to whether it’s a performance issue
V. Property
a. Traditional rule: real property…situs → law of state where property sits applies (Barrie’s)
i. Situs rule is strong enough that it may constitute an exception to FF&C (Barrie’s)
b. In re Barrie’s Estate (IA 1946)
i. F: Barrie (IL) has land in IA, and devises it to an IA church and others. Will was in an envelope marked “VOID.” ii. QP: Was this an effective revocation of will?
1. IL: yes, and court disposed of property under IL intestacy law
2. IA: no iii. H: IA law controls, so no recovation, and property goes to IA church
1. Even though IA statute says that execution of will is controlled by state of execution—b/c revocation is different, statute doesn’t apply iv. Dissent: should be treated as a probate case, not a property case
v. IA court basically exercises the real property ‘exception’ to FF&C
c. Dépeçage: where different issues within a case may be governed by the laws of separate states
i. May be unpredictable b/c it’s at court’s discretion whether or not to dissect
1. Disfavored, but not prohibited, tool
d. Wills: writing a choice of law provision may ameliorate some complication w/r/t decedent expectations
e. Movable property:
i. In the context of a will:
1. Governed by law of decedent’s domicile ii. ‘movable property’ not in the context of a will (e.g. deed, gift)
1. situs rule applies at time of transfer (Cammell)
2. → rule is not so straightforward, as shown by Shanahan. iii. Cammell v Sewell (Ex Ch 1860) p29 n5
1. F: Cargo shipped on Prussian vessel from Russia to England; the ship wrecks in Norway. Shipmaster sells off goods in Norway; purchaser resells it to an English merchant; English cargo insurers sue English purchasers to get the cargo back
2. H: Norwegian buyer innocent, so no liability under Norweigen law
a. → First sale + innocent purchaser
i. → for personal property, law of the place of transfer controls iv. Shanahan v Landers (1st Cir 1959) p30 n6
1. Property sold in IL on credit to MA buyer; buyer uses it in NH and becomes involvent, so sells it to bona fide purchaser, who goes to VT where the seller then repossesses it
2. H: Place of repossession controls
f. Other vested rights rules:
i. Estates: law of place of decedent’s domicile at time of death ii. Corporation’s internal affirs governed by laws of place of incorporation
1. Note that corporate form isn’t relevant if corporation is simply a party to litigation and case isn’t about internal affairs iii. Marriage: law of place of celebration governs questions of marriage validity iv. Family issues: marital domicile place
VI. Escape Devices:
a. Characterization: which of the vested rights rules applies? → some cases fall into multiple categories (e.g. torts and Ks), so picking one can lead to different (more desirable?) outcomes
i. E.g. Levy—tort (car accident) or K (rental car) {Ct 1928}
1. F: Rental car company rents a car to Sack, who gets into an accident in MA with passenger Levy in car
a. Conflict: how do you characterize this dispute?
i. Tort: place of accident (MA)—no recovery possible ii. K: place of formation (CT)—statutory recovery from rental car company for negligence
b. Court holds this is a K case, so CT law applies
i. Levy + public are third-party beneficiaries of the K btwn Sack and Daniels ii. Note: seems like a good-faith characterization…not results-oriented ii. E.g. Haumschild (Wisc 1959)
1. Husband and wife (WI) get into a car accident in CA
2. Conflict: how to characterize
a. Tort: Place of injury (CA)—no recovery possible by wife against husband (interspousal immunity)
b. [other]: WI law allowed wives to sue in husbands in tort
3. H: WI law applies, b/c this is about family law [not as a question for the court]
a. Not consistent with what was done in the past iii. E.g. Barrie—property or probate? (???????)
b. Substantive v. Procedural
i. Procedural: apply the law of the forum (Keeton) ii. Substantive: a choice-of-law question iii. Forum law decides how to characterize something (Grant v. McAuliffe) iv. Rules pertaining to the remedy (vs the right) are procedural? (Kilberg)
1. Grant v. McAuliffe (Cal 1953)
a. F: Several CA residents get in car accident in AZ, lawsuit not filed until after one of them dies
b. Conflict: whether survival of a cause of action is procedural or substantive
i. AZ: cause of action not filed before death doesn’t survive ii. CA: cause of action survives death of P
c. H: survival is akin to SoL → procedural
i. So, action maintained
v. SoL: Bournais v Atlantic Maritime (p55) (2d Cir 1955)
1. did not read this case
2. note that Harlan determines SoL to be procedural
a. b/c:
i. says SoL generally governs a wide body of cases (procedural), and doesn’t ii. deal with a complex, complete system of laws (substantive—e.g. workers comp) vi. Which SoL applies?
1. Traditionally (1st Res) = follow forum state
2. 2nd Res = presumption in favor of shorter SoL
3. Uniform Act = if you pick foreign law, must take forum SoL
4. Today: 2/3 states dropped assumption that if procedural → up for grabs
c. Public Policy
i. Embodied in First Restatement ii. Holdover from comity/territorialism—needed an escape hatch iii. Definition (Loucks)
1. Menace to public welfare
2. Offend sense of justice iv. Examples of public-policy exceptions
1. Allowing a wife to sue husband in tort (Mertz)
2. Damages cap (Kilberg)
a. But see Loucks (damages cap OK)
v. Not examples of public-policy exceptions
1. Nazi Contracts (Holzer) vi. Cases:
1. Loucks v Std. Oil Co. (N.Y. 1918) p70
a. NY resident was in a fatal accident in MA; negligently caused by Ds employees (also NY)
b. Conflict: common-law didn’t allow for wrongful death recovery
i. MA: statute allowed recovery with $10k cap ii. NY: statute allowed recovery with no cap, but only for accidents in NY
c. H: (Cardozo) MA law applies (place of injury) because it doesn’t conflict with the public policy of NY
i. → it does not offend sense of justice or menace public welfare ii. NY follows same principles, so no conflict
1. …mere differences in remedy doesn’t count where same principles followed
2. Mertz v Mertz (NY 1936) p73
a. Wife sues husband (both NY) for injuries sustained in an accident in CT
b. Conflict: which law applies?
i. CT: allows recovery ii. NY: doesn’t allow recovery by wife against husband (interspousal immunity)
c. H: CT law (place of injury) offends public policy of NY, thus NY law applies
i. NY law places a ‘disability’ upon the wife, and a foreign state can’t remove this disability
1. Re: what is a valid cause of action?
3. Holzer v Deutsche Reichsbahn (NY 1938) p75
a. Employment K btwn P and D corporation (both German) provided for liquidated damages if P was terminated
i. D fires Jewish P under Nazi Nuremberg Laws, and thus aren’t responsible for breach of K under German Law
b. H: German law applies (place of K formation) because it is not offensive to public policy of NY
i. Enforcing a K made according to law of place of formation is not offensive to public policy (respect for sovereignty over people)


I. Party Autonomy
a. Goal: Try to respect the expectations of parties to make private law
i. Presumption of validity of K (Pritchard) ii. Differentiate state interest in validity of K versus no state interest in interpretation of terms? (Siegelman)
b. Toughest Q = adhesion Ks
c. Where do we stand?
i. Courts willing to give parties’ latitude even if it moves beyond vested rights [though not complete latitude]
d. Cases
i. Pritchard v Norton (SC 1882) p97
1. Pritchard (LA) signed a bond on behalf of a railroad in LA state court, for which Norton (NY) agreed to indemnify Pritchard by K (NY)
a. RR loses the suit, Pritchard pays, and then sues Norton for indemnification
2. Conflict: which law applies
a. NY: indemnification K is void b/c no consideration was given
b. LA: K valid b/c Pritchard’s pre-existing liability as surety was sufficient consideration
3. H: LA law applies, K is valid
a. Party expectations: they couldn’t have contracted contemplating a law that would defeat the K formation
i. SO→ this is an exception to the general rule of place of formation (doesn’t make a real decision….just shifts focus to intention)
b. Vested rights: place of performance (LA)?
c. Shows presumption of validity in determining choice of law for K
4. Potentially lasting issue: assumes that parties intend K to be valid.
a. Adhesion Ks? ii. Siegelman v Cunard (2d Cir 1955) p99
1. P is injured on a cruise ship, and the ticket/K says all actions must be brought within 1 year per English law
a. P contacts D within the year, but they say don’t file the suit because they wil work out a settlement
b. Settlement talks break down, and he sues after expiration of the year
2. Conflict: which law applies?
a. English law: strict bar on cause of action
b. NY law: suit can be maintained b/c of estoppel and tolling statutory period
i. Note: NY interest in protecting its citizens is usually less re interpretation than establishing validity of Ks
3. H (Harlan): English law applies in interpreting the K—dismiss the suit
a. Party expectations through provision in the K-
4. Dissent (Frank) notes that NY law is what enables the choice-of-law provision in the K to control in the first place, so this is bootstrapping
II. Interest Analysis
a. Currie’s 1958 article
b. Evaluated Milliken with the married woman’s right to K
i. Make a table of all permutations, and note that only 4 cases are true conflicts ii. Only Cases 2, 9, 10, and 14 are cases in which advancement of one’s state interest necessarily subordinates the other state’s interest iii. → See Sopan outline for charts and insights
c. Issues:
i. Requires courts to evaluate purposes of laws—including foreign laws
1. Gives very little guidance
2. Separation of powers issue?
3. OTOH, courts do this evaluation all the time (e.g. Marek v Chesney, evaluating FRCP 68 v § 1983) ii. Ignores party expectations and party interests iii. Not forum-neutral
d. Applying Currie’s Interest Analysis
i. First ask: what is the purpose of the two laws? What is state trying to achieve? ii. False conflicts: (4,5,8,12,13)
1. Find purpose of law, and if one state’s interests aren’t impeded upon by applying the other state’s law→ false conflict
2. E.g. purpose of guest statute is to protect insurers, so no interest if parties are out of state (Tooker)
3. E.g. purpose of NY law is to protect medical providers and state welfare, so no interest if victim is from NJ (Schultz)
4. Cases
a. Tooker v Lopez (NY 1969) p136
i. Car accident (MI) involving MSU students (both from NY and MI), in a car registered and insured in NY ii. Conflict: which law applied?
1. MI guest statute: required gross negligence for recovery in wrongful death suits
2. NY: no guest statute, allowed recovery iii. H: NY law applies
1. MI has no interest b/c purpose of MI statute is to protect insurers against false claims, not to prioritize claims of non-guest victims—thus abandons Dym rule (that >1 purpose per law); (says just 1 purpose for each law)
2. NY has an interest in protecting and compensating its resident victims
3. No such thing as party expectations in tort cases (nobody expects an accident
4. Fuld concurrence: wants to create meta-guides for how this should be handled iv. Dissent (Breitel) would stay with Dym, especially since the MI victim cant recover while the NY ones can
b. Schultz v. Boy Scouts (NY 1985) p143
i. NJ family sues Boy Scouts (NJ, but since moved to TX) for abuse by a scoutmaster on a camping trip in NY ii. Conflict: which law under interest analysis?
1. NJ: charitable tort immunity
2. NY: no such immunity iii. H: NJ law applies under interest analysis, b/c false conflict
1. NJ interest is loss-allocating: protect and promote charities; hold domiciliaries to domestic law obligations
2. NY interest is conduct-regulating (limited interest): protect medical providers from unpaid bills; prevent people from becoming wards of state; deter charities from bad behavior
3. So….no NY interest is implicated b/c everyone is from NJ, whereas NJ interests are only vindicated by applying NJ law
4. Also mentions that the alternative rule would lead to forum shopping (how?) iv. Dissent: calculates the interests differently saying NY has an interest in preventing/deterring abuse within its borders
1. Note: this isn’t a clean false conflict…interests can go multiple ways
c. Babcock v Jackson (NY 1963) p149 n1, p136cite
i. NY residents in a NY car get into accident in Ontario ii. Court held that ON guest statute sought to protect insurers against fraud, so recovery permitted under NY law
d. Dym v Gordon (NY 196x) p137 cite
i. NY residents, in NY car, get into CO accident (also involving some Co residents) ii. H: CO guest statute sought to protect insurers and also to prioritize claims of non-guest victims
1. Thus, found that CO law applied to preclude recovery by NY victims
2. → there exist >1 purpose for a law (Tooker doesn’t agree) iii. True conflicts: (2,9,10,14)
1. if a true conflict, then there is no principled way to pick→ there are a few options (the first 2 are different iterations of Currie’s thought):
a. Currie’s original proposal: pick forum law (Lilienthal)
b. Adopt a restrained interpretation of forum law and see if the conflict disappears (Bernkrant)
c. Evaluate comparative impairment of each state if the other state’s law is chosen (Bernhard v. Harrah’s)
d. Apply vested rights?
2. → 2 other ancillary ways to deal with true conflicts
a. Kavers – principals of preference (in notes)
i. Gives guidance through rules (territoriality with slant towards fairness)
b. Kramer’s approach – rule-based; focus on laws involved, not territories (statute/common law/time of statute enactment, etc) e.g. sophisticated rock-paper-scissors
3. Cases
a. Interests Analysis – true conflicts Lilientham v Kaufman (Ore. 1964) p160
i. D (OR) was declared a spendthrift under OR law, and couldn’t legally enter into a K
1. Regardless, Ks with CA resident, who then sues to enforce it and get paid ii. Conflict:
1. OR: spendthrift law invalidates K
2. CA: no such law, so K valid iii. H: Forum (OR) law applies, because this is a true conflict, so no way to resolve through interest analysis
1. OR interest: protect families from unintended debts; protect state funds for public assistance
2. CA interest: enforce K; protect citizen creditors
3. Ct explicitly rejects public policy exception [i.e. vested rights escape hatch] for CA law, and adopts OR law b/c true conflict iv. Dissent: OR law is weird (questionable and rare) and shouldn’t control when a conflict arises
b. Interests analysis: restrained Bernkrant v Fowler (Cal. 1961) p168
i. NV residents enter into an oral K where D agrees to forgive Ps debts in his will, if P gives him money today.
1. D then moved to CA, dies there before he forgives Ps debts in his will ii. Conflict:
1. NV law: statute of frauds (real property provision) doesn’t apply to provisions re money payment secured by real property, so debt is forgiven
2. CA law: statute of frauds does apply, so K is void and estate can collect iii. H: NV law applies because this is a false conflict
1. CA law to enforce K or invalidate them only applies to CA Ks (interest)
a. CA interest: Protect ppl from fraud
b. NV: enforcement of oral Ks
2. NV has greater interest (though both interests would be furthered by applying their law)—moderate and restrained approach to CAs interest
3. Party expectations were that NV law would apply; can’t let one party change the law by moving unexpectedly
4. A restrained interpretation of forum law to change a true conflict into a false one
c. Interest analysis—comparative impairment Bernhard v Harrah’s Club (Cal. 1976) p172
i. CA residents, responding to NV casino advertisements placed along CA highways, drove to NV to gamble there
1. NV club’s –ees serve them booze; accident in CA on way back with another CA resident ii. Conflict:
1. CA: imposes liability for serving alcohol to visibly drunk patrons (dram shop liability…crim + civil)
2. NV: exempts tavern owners from such liability iii. H: CA law applies in this true conflict situation
1. CA interest: protect victims/ppl on highways
2. NV interest: economic; protect tavern owners iv. → Under comparative impairment, NV is impaired less b/c it already imposes criminal punishment on tavern owners, so extra civil penalty is not a big deal
1. by contrast, CA interest is significantly impaired if immunity is conferred to preclude recovery iv. Unprovided-for case
1. 3,7,11,15→ neither state has an interest
2. not much consensus w/ how to deal with these
3. Currie had 4 thoughts: more human, protect parties, defect to forum law, ___
4. Erwin v Thomas (Or 1973) p153
a. P (WA) was injured in WA by D (OR)—Ps wife sued D for loss of consortium, allowed in OR, not in WA
b. If neither state has an interest, forum law is applied b/c of convenience, administerability
c. If forum is committed to interest analysis:
i. Apply the law that is more enlightened or humane ii. Apply the law that aids local litigant iii. Treat foreign claimants as they would be treated in their own state iv. Law of the forum* (best)
III. Second Restatement
a. Overview:
i. Presumption re applicable state law (most= vested rights) ii. Unless another state has a more significant interest
1. → provides a multi-factor test
b. Application: (p200-01)
i. What kind of case are you dealing with?
1. Characterize the issue (tort, K, property, etc)
a. Use forum law for characterization (§7)
2. Find the applicable subsection and follow the instructions to find the presumptive law to apply
3. Then apply the seven §6 factors to see if the presumption is overcome by a state with more significant contacts
a. Needs of interstate and international systems
b. Relevant policies of forum
c. Relevant policies of other interested states and relative interests of those states
d. Protection of justified expectations
e. Basic policies underlying the field of law
f. Certainty, predictability, and uniformity
g. Ease in determination and application of the law to be applied ii. Unless another state has a more significant relationship (kind of like a center-of-gravity test…..most significant relationship)
c. In practice, 2d restatement ends up looking a lot like interest analysis (e.g. Phillips v GM)
d. Cases
i. Phillips v GM Corp (Mont 2000) p205
1. Guy buys a truck in NC (originally sold by GM in NC), but then moves to MT
a. Driving from MT to NC, they get in a fatal accident in KS; son now lives in NC again and estate sues GM
2. Conflict:
a. MT: strict liability for products, with no dmgs cap
b. NC: (unclear)
c. KS: comparative negligence for products liability, with an ‘industry standard’ affirmative defense available
3. H: MT adopts 2d Res → MT law applies
a. Presumption begins with KS aw as place of injury
b. But KS interest is to protect residents and fee-shift—not implicated here with MT P and MI D
c. NC has an interest in the truck sale, but NC choice-of-law would mechanistically pick KS, so NC has no interest
d. MI has an interest, but MI courts wouldn’t apply their law extraterritoriality, so MI has no interest
e. → MT law applies, b/c they like to protect their residents ii. (K law) Wood v Walker Adjustment Bureau (Colo. 1979) p218
1. NM v CO→ properly licensed contractor to recover on unfinished K?
a. NM law has more significant relationship
i. But didn’t talk enough re: justified expectations
IV. Better Law/Choice-influencing (used by some, but not many states)
a. Five choice-influencing considerations (Leflar article…p224)
i. Predictability of results
1. Forum-neutrality
2. Respect for parties’ bargained-for choices ii. Maintenance of interstate and international order
1. Could be read as an invitation to interest analysis iii. Simplification of judicial task
1. This is why procedural rules are governed by forum law
2. This also weeds out false conflicts iv. Advancement of forum’s governmental interests
v. Application of the better rule of law, which includes
1. Law that makes the best socio-economic sense for the times
2. Justice in the individual case
3. Protection of justified expectations of parties
b. Better law in practice
i. MN court finds that MN common law is better than ON guest statute (Milkovich) ii. NH’s lengthy defamation SoL better than other states’ (Keeton) iii. Cf. Jepson, where MN court finds that neither MN law allowing stacking or ND law disallowing it is better than the other
c. Guest statutes: pros/cons
i. Insurance collusion, carpooling in rural areas, environmental concerns
d. Problems with better law standard:
i. People might have different metrics for how to determine ‘better’
e. Cases
i. Milkovich v Saari (Minn. 1973) p227
1. A lot of ON residents get into car crash on a day trip to MN
a. One victim hospitalized in MN
2. Conflict
a. ON has a guest statute barring recovery
b. MN does not
3. H: MN law applies under five choice-influencing considerations
a. First three are irrelevant (predictability; maintenance of interstate order; simplification of jsutidical task)
b. Forum interest is to administer justice—but court doesn’t look to purpose of statutes or interest of ON
c. Better law (justice in the individual case; fairness; equity) points to MN law
4. Note: strong state movement away from these guest statutes support tidea that guest statutes aren’t better law ii. Jepson v Gen. Casualty Co. (Minn. 1994) p232
1. P (MN) travels to AZ, where he has a car accident; then attempts to collect on his underinsured motorist provision
a. P lived near ND border, had a ND company, purchased ND auto insurance policy through MN broker on seven cars
2. Conflict:
a. ND: doesn’t allow “stacking” of underinsured coverage policies
b. MN: does allow stacking
3. H: ND law applies under the five Leflar fators
a. Predictability: both a tort (no predictability) and K case, so the K part favors predictability (seems like parties expected MN law to apply based on their negotiations) → ND law favoring
b. Interstate order: P was forum-shopping in MN
c. Simplification of judicial task: not relevant
d. Forum interest: MN interest is to compensate victims, but also to uphold K
e. Better law: neither law is better (just different)—so can’t simply choose forum law under this test → so, this factor not dispositive iii. Sopan discusses keeton v hustler here too
V. Renvoi
a. Definition and application
i. Apply other state’s whole law (both substantive law and choice-of-law rules) ii. But need to avoid infinite loop problems (e.g. Pfau) iii. Can be used to identify and eliminate false conflicts (e.g. NC law in Phillips)
1. Phillips: disregarding NC law based on fact that NC would have chosen KS law
b. First Restatement → apply renvoi when
i. Title to land (and related decrees) ii. Divorce decrees
c. Second Restatement → apply renvoi when
i. Disinterested forum, and all other forums would reach the same result ii. Where the choice-of-law rules dictate a result identical to that of an interested forum
1. One state has a clearly dominant interest—e.g. land
2. Urgent need for uniformity—e.g. testamentary gifts of movable property iii. (like in Phillips, this kind of looks like an escape device for judges to get where they want)
d. Case
i. Pfau v. Trent Aluminum Co. (NJ 1970), p246
1. P was a passenger in Ds car, and they get into an accident in IA, where both attended college
a. P from CT, D from NJ, car registered and injured in NJ
2. Conflict:
a. IA guest statute only allows recovery for gross negligence
b. CT has no guest statute, but follows vested rights choice-of-law
c. NJ has no guest statute, but follows interest analysis choice-of-law
3. H: NJ court applies interest analysis, and decides that CT law applies to allow recovery
a. Only applies CT substantive law (allowing recovery), not CT’s total law
b. CT’s vested rights may have pointed to IA, but it may have applied public policy exception
c. IA may have pointed back to CT or NJ under interest analysis
d. So to avoid renvoi problem, NJ would apply CT substantive (internal) law, but not CT’s total law (e.g. use NJ’s choice of law law)
VI. Rules vs Standards (need better notes on this)
a. Paul v National Life (W.Va 1986) p256
i. WV drivers, IN crash with guest statute—uses public policy escape hatch ii. Lex loci is applied—apply rules over standards, contemptuous of modern approaches
1. Looks towards trend in the law
2. Note that we might be moving towards a standards enactment iii. Used public policy exception b/c of the strong interest of WV to allow P to recover for negligence iv. Even when courts want to apply rules, they can tweak them to their own liking
VII. Complex Litigation
a. Uniformity of law
i. Courts will often seek uniformity to simplify MDL or class action proceedings (e.g. In re Air Crash; In re Agent Orange) ii. Only a problem with modern theories; vested rights would get around these issues
b. Case
i. In re Air Crash Disaster Near Chicago (7th Cir. 1981), p263
1. American Airlines airplane crashes just after takeoff from O’Hare
a. Passengers from various states and nations file various suits in IL, CA French judgment
3. (9th circuit en banc 6-5 ultimately reversed—3 judges for lack of p/j, 3 for lack of ripeness)


Survey of states/students…condit/Clemens/twitter 1-3

I. Due Process
a. Notice and foreseeability
i. Early decisions focused on whether parties could reasonably foresee a certain law to apply ii. E.g. in era of vested rights, MO law cannot govern a NY contract (Dodge)
1. But perhaps Dodge was about substantive due process? iii. E.g. a bare forum cannot apply its law, because parties couldn’t have foreseen it (Dick) iv. E.g. if a state has ‘but a slight connection’ to the issue, these parties couldn’t foresee its law to apply (Delta & Pine)
v. → Three cases show transition:
1. Dodge focuses on liberty of K (all about place of K and place of performance)
2. Home Inc: naked forum, so unfair law to expose as due process
3. Delta + Pine: might have been ok if there was notice vi. Where do we stand?
1. Vested rights, unless strong state interest _ connection in Ks substance, so it wouldn’t be unreasonable to apply its law [DP violation]
b. Constitutionalization of vested rights?
i. Dodge, Dick, and Delta & Pine all seem to require vested rights (place of K formation) ii. But they (Brandeis) subtly make the shift towards state interests , hinting that if a state had sufficient interest in the matter, it could apply its law
1. Seems misplaced in DP, hence a shift to FFaC as well.
c. Cases
i. NY Life Ins. Co. v. Dodge (SCOTUS 1918), p316 n.2
1. MO resident buys policy from NY insurer, who then loans him $$ with policy as security
a. He dies, and insurer voids policy under NY law and applies it to loan balance
2. Conflict:
a. NY law: can void policies to cover debts
b. MO law: can’t void insurance policy to cover deceased’s debts
3. H: NY law applies
a. → law of formation of K is NY, and MO law conflicts w/ freedom of K protected by 14th amendment (Lochner)
4. Dissent (Brandeis): MO law isn’t unconstitutional even under strict scrutiny, b/c it leaves the loan debt intact ii. Home Ins. Co. v. Dick (SCOTUS 1930), p312
1. TX citizen living in MX, bought a boat in MX, insured it in MX from MX insurer
a. Boat is destroyed in MX, insurance K said suit had to be brought w/in 1 year
b. He moves back to TX and files suit against NY reinsurer after one-yr period
2. Conflict:
a. TX law: any K with

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