Choice of law Recognition of foreign judgments Constitutional Subconstitutional What are you doing when you do choice of law A Pennsylvania husband and wife get into a car accident in New York The wife sues the husband in state court in Vermont ID: 635723
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Slide1
Lect. 2
1/14/2016Slide2
Personal jurisdiction
Choice of law
Recognition of foreign judgments
Constitutional
Sub-constitutionalSlide3
What are you doing when you do choice of law?Slide4
- A Pennsylvania husband and wife get into a car accident in New York. - The wife sues the husband in state court in Vermont.
- Pennsylvania has interspousal immunity; NY and Vermont do not.Slide5
It’s like
statutory interpretation
:
The Vermont court is trying to determine whether Pennsylvania officials want their interpousal immunity law to apply to Pennsylvania couples who get into accidents out of state...Slide6
It’s like
international law:
There is a division of lawmaking authority that transcends states (and nations). Vermont does not have the
power
to determine the capacity of Pennsylvanians to sue one another after having accidents in New York.Slide7
It’s like
procedure
:
The Vermont court needs to choose whether New York or Pennsylvania law should be used, and it has its own rules (like its rules for service or joinder) to make that choice.Slide8
The Traditional ApproachSlide9
Alabama Great Southern RR Co v Carroll
(Ala. 1892)Slide10
territorialismSlide11
vested rights theorySlide12
legal realismSlide13
lex loci delictiSlide14
What if
Carroll
had fallen in Miss, felt OK, walked to La and there had his harm manifest itself?Slide15
§ 377. The Place Of
Wrong
The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place
.
Rule 1.
…when
a person sustains bodily harm, the place of wrong is the place where the harmful force takes effect upon the body.Slide16
Assume the plaintiff is poisoned by the defendant in Alabama, gets sick in Mississippi, and dies in Louisiana. What state's law applies for a tort action against the defendant? Why?Slide17
§ 377. The Place Of Wrong
Rule 2. When a person causes another voluntarily to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered.Slide18
What if the Carroll's wife, who lives with Carroll in Alabama, had sued the railroad for loss of consortium. What law would apply?Slide19
Assume Carroll had died in the Miss. accident and his wife sued for wrongful death?Slide20
§ 391. Right Of Action For Death
The law of the place of wrong governs the right of action for death.Slide21
D, in Mississippi, makes material misrepresentations by phone to P in Alabama. In reliance upon these representations, P sends goods from Alabama to D, in Mississippi. D keeps the goods. P sues D for fraud (a tort). Which law applies?Slide22
D, broadcasting in Alabama, slanders P. The broadcast is heard in Mississippi and Louisiana. P has a good reputation in both states, which is affected. Which state's or states' law applies? Slide23
§ 377. The Place Of Wrong
Rule 5. Where harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated.Slide24
D lives in Mass.
His dog strays from Mass to NH, bites P there
Mass follows the dangerous propensity (one free bite) approach – that is, a negligence approach negligence approach
NH, has strict liability
which law applies?Slide25
Place of the wrong determines:
whether damages are recognized (eg psychological harm, loss of consortium, wrongful death
limitations on damages, exemplary (eg punitive) damages
standard of care (negligence, strict liability)
whether contributory negligence or comparative fault applies
even when act of P’s negligence occurs in another stateSlide26
s
ome fudging…Slide27
By the law of Mississippi, due care requires that every locomotive be double checked for defective links.
By the law of Alabama, there is no such requirement.
The inspector for Alabama Great Southern RR checked for defects in Alabama once.
The link broke in Mississippi and Carroll was injured there.
Rather than suing the Railroad, Carroll sues the inspector in Alabama for negligent inspection (so Mississippi’s fellow servant rule is not relevant).
Under the First Restatement, does Alabama or Mississippi law apply concerning the question of whether due care requires a double check for defective links? Slide28
§ 380(2)
Where by the law of the place of wrong, the liability-creating character of the actor's conduct depends upon the application of a standard of care, and such standard has been defined in particular situations by statute or judicial decision of the law of the place of the actor's conduct, such application of the standard will be made by the forum.Slide29
By the law of Alabama, a police officer has qualified immunity – liable for damages in course of duty only if reckless.
No such immunity in Mississippi.
Officer D, acting in AL, negligently but not recklessly shoots P in the course of an arrest of X
P harmed in MS
Is D liable to P?Slide30
§ 382 A person who acts pursuant to a privilege conferred by the law of the place of acting will not be held liable for the results of his act in another state.Slide31
Scheer v Rockne Motors Corp.
D in NY gave X car but did not authorize him to go to Ontario,
X goes to Ontario
law of Ontario created liability on D for X’s torts
law of NY did not
Does NY or Ontario law apply?Slide32
§ 387 When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the tort of the other is determined by the law of the place of wrong.Slide33
Substance v. procedure
§ 412. Measure Of Damages For Tort
The measure of damages for a tort is determined by the law of the place of wrong.
Comment:
Rationale. The right to damages in compensation or punishment for a tort is to be distinguished from the right of access to the courts and from the procedure provided to obtain the damages. The creation of a right to have damages necessarily involves the measurement of that right in so far as the law can measure it. While the actual finding of the amount of damages is a function of the jury or other fact-finding body at the forum, the law that creates the right determines what items of loss are to be included in the damages. Since the right is created by the law of the place of wrong, it is measured by that law.Slide34
Milliken v Pratt
(Mass. 1878)