Outline Conflict Of Laws Outline

Conflict of Laws

1. History

   1. England

      1. In England, after the Norman conquest, the royal courts purported to administer a single common law of the land, preventing recognition of conflicts within England.

      2. In England, courts held as early as 1280 that they lacked power to entertain suits involving foreign acts or transactions; consequently, there was no basis for developing an international law of conflicts.

      3. Eventually, Holman v. Johnson (pg. 4):

         1. "Every action tried here must be tried by the law of England, but the law of England says in a variety of circumstances . . . the law of the country where the cause of action arose shall govern."

   2. Roman Empire

      1. Conflict of laws was seen as essentially a problem of statutory interpretation

      2. Scholars, called "statutists" divided enactments into two categories:

         1. (1) Real statutes: applied only within the territory of the city whose law it was

         2. (2) Personal statutes: followed the city's citizenry wherever they might go

      3. Eventually, a third category was devised: (3) Mixed statutes

      4. Ultimately, the trouble was that neither judges nor scholars could agree upon which statutes were real, which were personal, and what to do with those that were mixed.

   3. Dutch Maxims (Ulrich Huber's Three Maxims)

      1. (1) The laws of each state have force within the limits of that government and bind all subjects to it, but not beyond.

      2. (2) All persons within the limits of a government. whether they live there permanently or temporarily, are deemed to be subjects thereof.

      3. (3) Sovereigns will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects.

   4. The United States

      1. Justice Joseph Story (the father of conflict of laws) in an attempt to explain the English decisions that came to the United States via the common law looked to Europe and borrowed Huber's three maxims, using them to organize and explain the seemingly chaotic common law precedents.

      2. Justice Story's approach was modified by Professor Joseph Beale, who urged replacing the third maxim (that is, comity) with a notion of "vested rights."

         1. Joseph Beale's theory was endorsed from the bench by Justice Holmes in Slater v. Mexican Nat'l R.R.

         2. Beale's theory was universally adopted by courts of the United States for at least the first half of the 20th century.

         3. Most judges and commentators view the "traditional approach" as synonymous with Beale's "vested rights" approach

            • The Traditional Approach is used in 10 jurisdictions re torts

            • The Traditional Approach is used in 12 jurisdictions re contracts

      3. In the late 1950s and early 1960s, Brainerd Currie developed "governmental interest analysis"

         • Interest Analysis is used by 2 jurisdictions re torts

         • Interest Analysis is used by 0 jurisdictions re contracts

      4. In 1971, the ALI published the Restatement (Second) on the Law of Conflict of Laws.

         1. The Second Restatement was a compromise between the new and the old

         2. The Second Restatement retains many of the traditional rules but situates them in a flexible, policy-oriented framework

         3. The Second Restatement has become the majority rule

            • The Second Restatement is used in 24 jurisdictions re torts

            • The Second Restatement is used in 23 jurisdictions re contracts

2. The Traditional Approach (followed by 10 juris re torts/12 juris re contracts)

   1. 3 Core Principles

      1. (1) Territoriality

         1. "[E]very nation possesses an exclusive sovereignty and jurisdiction within its own territory." Justice Story, Commentaries on the Conflict of Laws § 18 (pg. 10)

            • Legislatures only legislate with respect to their own territory BUT such power is absolute (only they can legislate).

      2. (2) Localization

         1. "[N]o state or nation can, by its own laws, directly affect, or bind property out of its own territory, or bind persons not resident therein, whether they are natural born subjects, or others." Story, Commentaries on the Conflict of Laws § 20 (pg. 11)

            • The kind of dispute is localized where multiple territories have jurisdiction (e.g. tort is localized to place where injury occurred).

      3. (3) Vested Rights OR Comity

         1. SPLIT

            • (3) Vested Rights

              • "The theory of the foreign suit is that, although the act complained of was subject to no laws having force in the forum, it gave rise to an obligation, an obligatio, which like other obligations, follows the person, and may be enforced wherever the person may be found." Slater v. Mexican Nat'l R.R. (pp. 12-13)

                • Law's "method of creating rights is to provide that upon the happening of a certain event a right shall accrue. The creation of a right is therefore conditioned upon the happening of an event . . . . When a right has been created by law, this right itself becomes a fact . . . . A right having been created by the appropriate law, the recognition of its existence should follow everywhere." Jospeh Beale, Treatise on the Conflict of Laws § 73 (pg. 12)

                  • Courts don't apply the law to a dispute, they enforce rights in a dispute.

                  • If a right is vested somewhere else, it should still apply everywhere else.

            • (3) Comity

              • "[W]hatever force and obligation the laws of one country may have in another, depend solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent." Story, Commentaries on the Conflict of Laws § 23 (pg. 11)

              • "'[C]omity of nations' . . . is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another." Story, Commentaries on the Conflict of Laws § 38 (pg. 12)

   2. Rules

      1. General Rules

         1. "[T]here can be no recovery in one state for injuries to the person sustained in another, unless the infliction of the injuries is actionable under the law of the state in which they were received." Alabama Great Southern R.R. Co. v. Carroll (pg. 6)

            • This...

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