Chapter 14. Marital Property 135 results (showing 5 best matches)
- On community property conflict of laws problems generally, see Kingma, Property Division at Divorce or Death for Married Couples Migrating Between Common Law and Community Property States, 35 ACTEC J. 74 (2009); J. Oldham, What if the Beckhams Move to L.A. and Divorce? Marital Property Rights of Mobile Spouses When They Divorce in the United States, 42 Fam. L.Q. 263 (2008). See also H. Marsh, Marital Property in the Conflict of Laws (1952); de Funiak & Vaughn, Principles of Community Property 212 (2d ed. 1971); 1 Rabel, The Conflict of Laws 353 (2d ed. 1958); 2 Beale, The Conflict of Laws §§ 237.1–238.2, 289.2 (1935); Restatement, Second, Conflict of Laws §§ 233, 257 (1971); Davie, Matrimonial Property in English and American Conflict of Laws, 42 Int’l & Comp. L.Q. 855 (1993); Juenger, Marital Property and the Conflict of Laws: A Tale of Two Countries, 81 Col. L. Rev. 1061 (1981); Clausnitzer, Property Rights of Surviving Spouses and the Conflict of Laws, 18 J. Fam. L. 471 (1980);...
- See Restatement, Second, Conflict of Laws §§ 233, 257 intro. note (1971). See also Marsh, Marital Property in Conflict of Laws 11 (1952); Schreter, “Quasi–Community Property” in the Conflict of Laws, 50 Cal. L. Rev. 206 (1962); Scoles, Choice of Law in Family Property Transactions, 209 Recueil des Cours 17 (1988–II).
- As to international conflict of laws, see, e.g., Castel & Walker, Canadian Conflict of Laws 25.1 et seq. (6th ed.2005); McLeod, The Conflict of Laws 371 (1983) (Canada); Shava, Israeli Conflict of Laws Relating to Matrimonial Property—A Comparative Commentary, 31 Int’l & Comp. L.Q. 307 (1982); Thiele, The German Marital Property System: Conflict of Laws in a Dual–Nationality Marriage, 12 Cal. W. Int’l L.J. 78 (1982); Atkin, Matrimonial Property Going Overseas, 11 N.Z.U. L. Rev. 183 (1984); Rafferty, Matrimonial Property and the Conflict of Laws, 20 U.W. Ont. L. Rev. 177 (1982); Bruch, Symeonides & Weisberger, Conflict Rules for Marital Property, 35 Am. J. Comp. L. 255 (1987); Schoenblum, Choice of Law and Succession to Wealth: A Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents’ Estates, 32 Va. J. Int’l L. 83 (1991); Estin, Families and Children in International Law: An Introduction, 12 Transnat’l & Contemp. Probs. 271 (2002).
- Juenger, Marital Property and the Conflict of Laws: A Tale of Two Countries, 81 Col. L. Rev. 1061 (1981); Shava, Israeli Conflict of Laws, Matrimonial Property, 31 Int’l & Comp. L.Q. 307, 312 (1982); Palsson, Rules, Problems and Trends in Family Conflict of Laws 199 Recueil des Cours 313, 378 (1986–IV).
- It seems appropriate at the outset to dispose of a matter that is essentially a non-problem in the United States, generated by over statement of the so-called situs rule in conflicts law. It has generally been assumed in the United States that questions concerning the creation of interests in land are governed by the law of the place where the land is located. Under this view, the law of the situs would determine what, if any, interest one spouse or domestic partner has in the other’s land as an incident to the relationship. The law of the state where the land or immovable is situated will determine whether the particular issue, if one exists, will be controlled by the local law of the situs, or by reference to some other law, for example, the domicile of the parties. Since no community property rights attach at the time of the marriage to existing assets, the issue with regard to immovables has only arisen as to common law property in the form of dower rights in land attaching at...
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Chapter 21. Trusts and Powers of Appointment 126 results (showing 5 best matches)
- W. Land, Trusts in the Conflict of Laws (1940); A. Ehrenzweig, A Treatise on Conflict of Laws § 244 (1962); G. Stumberg, Conflict of Laws 391–97 (3d ed. 1963); Cavers, Trusts Inter Vivos and the Conflict of Laws, 44 Harv. L. Rev. 161 (1930); Note, Trusts of Personal Property and the Conflict of Laws, 19 Colum. L. Rev. 486 (1919); Dean, Conflict Avoidance in Inter vivos Trusts of Movables, 21 Law & Contemp. Prob. 483 (1956); Ester & Scoles, Estate Planning and Conflict of Laws, 24 Ohio St. L.J. 270 (1963); Leflar, Estates and Trusts Conflict of Laws Problems, 37 Tr. Bull. 44 (No. 9, May, 1958); Scoles, Conflict of Laws in Estate Planning, 9 Fla. U. L. Rev. 398 (1956); Scott, What Law Governs Trusts?, 99 Tr. & Est. 186 (1960); Trowbridge, Conflict of Laws: Trustor’s Right to Designate Controlling Law, 36 A.B.A. J. 913 (1950). Cf. Beale, Equitable Interests in Foreign Property, 20 Harv. L. Rev. 382 (1907); Beale, Living Trusts of Movables in the Conflict of Laws, 45 Harv. L. Rev. 969...
- See Durand & Herterich, Conflict of Laws and the Exercise of Powers of Appointment, 42 Cornell L.Q. 185, 190 (1957); Ester & Scoles, Estate Planning and Conflict of Laws, 24 Ohio St. L.J. 270, 273 (1963).
- “Where a power of appointment is present in a situation calling for an application of the rules of conflict of laws the temptation to resort to the ‘relation back’ doctrine is obvious; but there is no reason to suppose that the doctrine will be any more meaningful in that field than elsewhere. Undoubtedly the law of powers of appointment and the considerations on which that law is based are significant in conflict of laws; but the ‘relation back’ doctrine, never a reason for the law of powers, is neither an adequate nor an accurate exposition of it.”
- See Restatement, Second, Conflict of Laws § 274 cmnt. (c) (1971); A. Ehrenzweig, A Treatise on Conflict of Laws 670 (1962). Cf. Guaranty Trust Co. v. Stevens, 28 N.J. 243, 146 A.2d 97 (1958).
- This is the view reflected in Note, Trusts of Personal Property and the Conflicts of Law, 19 Colum. L. Rev. 486 (1919) (“In order to determine where the administration of the trust is located, consideration is given to the provisions of the instrument, the residence of the trustees, the residence of the beneficiaries, the location of the property, the place where the business of the trust is to be carried on”). See Restatement, Second, Conflict of Laws § 273, cmnt. (d) (1971); Scott, supra n.1, § 612; Swabenland, The Conflict of Laws in Administration of Express Trusts of Personal Property, 45 Yale L.J. 438 (1936). See also People v. First National Bank, 364 Ill. 262, 4 N.E.2d 378 (1936); Greenough v. Osgood, 235 Mass. 235, 126 N.E. 461 (1920); Curtis v. Curtis, 185 App.Div. 391, 173 N.Y.S. 103 (1918); Lozier v. Lozier, 99 Ohio St. 254, 124 N.E. 167 (1919). See First National Bank of Paterson v. National Broadway Bank, 156 N.Y. 459, 51 N.E. 398 (1898) (New York rule not applicable...
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Chapter 2. The Development and Current State of Approaches to Choice of Law Part 2 297 results (showing 5 best matches)
- See Symeonides, The First Conflicts Restatement, supra n.17, at 43–46. Beale did not only establish the first conflicts course in the United States, but he also published the first conflicts casebook, a three-volume collection of 400 American and English cases and seventy foreign cases translated into English. See J.H. Beale, Collection of Cases on the Conflict of Laws, 3 vols. (1900–1902). (Another casebook published in 1899 contained only 40 cases. See J. W. Dwyer, Cases on Private International Law (1899)). This casebook was adopted for teaching conflicts law in most American law schools. The third volume included a summary of Beale’s conception of conflicts law, which became the foundation for his three-volume published in 1935, a year after the promulgation of the Conflicts Restatement and generally following the Restatement’s structure and sequence. See J.H. Beale, A Treatise on the Conflict of Laws, 3 vols. (1935). By the 1920s, most American law schools introduced
- Thus, substantive justice is fused with conflicts justice, and both become co-equal goals of the choice-of-law process. As Kegel put it, under this view, “[s]ubstantive law and conflicts law are therefore not opposed as under the traditional private international law; rather conflicts law is only a facet of substantive law.… [C]onflicts law disappears into the ‘black hole’ of substantive law.” Kegel,
- For later American criticisms, see Bodenheimer, The Need for a Reorientation in American Conflicts Law, 29 Hastings L.J. 731 (1978); Borchers, Conflicts Pragmatism, 56 Alb. L. Rev. 883 (1993); Brilmayer, The Role of Substantive and Choice of Law Policies in the Formation of Choice of Law Rules, 252 Recueil des cours 9 (1995); Brilmayer, Methods and Objectives in the Conflict of Laws: A Challenge, 35 Mercer L. Rev. 556 (1984); Brilmayer, supra n.41; Ely, Choice of Law and the State’s Interest in Protecting its Own, 23 Wm. & Mary L. Rev. 173 (1981); Hay, Reflections on Conflict-of-Laws Methodology: A Dialogue, 32 Hastings L.J. 1644 (1981); Hill, Choice of Law and Jurisdiction in the Supreme Court, 81 Colum. L. Rev. 960 (1981); Juenger, Governmental Interests and Multistate Justice: A Reply to Professor Sedler, 24 U.C. Davis L. Rev. 227 (1990); Juenger, Governmental Interests—Real and Spurious—in Multistate Disputes, 21 U.C. Davis L. Rev. 515 (1988); Juenger, How Do you Rate a Century?...
- See F. Juenger, Choice of Law and Multistate Justice, 145–73, 191–208 (1993). (For earlier works on this theme, see Juenger, Choice of Law in Interstate Torts, 118 U. Pa. L. Rev. 202, 205 (1969); Juenger, Leflar’s Contributions to American Conflicts Law, 31 So. Car. L. Rev. 413 (1980); Juenger, Mass Disasters and the Conflict of Laws, 1989 U. Ill. L. Rev. 105, 126.) In this fascinating book, Juenger advocated what he called a “substantive-law” approach, a term intended to evoke the most ancient conflicts approach-that of the Roman (see supra § 2.2) who, in resolving disputes between Roman and non-Roman citizens, constructed ad hoc substantive rules derived from the laws of Rome, Greece, and other Mediterranean countries. Juenger traced the development and use of this approach from ancient Greece to Rome and through the middle ages to the 20th century, and then explored the advantages of this approach over both the bilateral and the unilateral choice-of-law methods. He proposed...
- See, e.g., Ehrenzweig, The Most Significant Relationship in the Conflict of Laws—Law and Reason versus the Restatement, Second, 28 Law & Contemp. Prob. 700 (1963); Ehrenzweig, Parental Immunity in the Conflict of Laws: Law and Reason versus the Restatement, 23 U. Chi. L. Rev. 474 (1956).
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Chapter 1. Introduction: The Subject Defined and Overview 21 results (showing 5 best matches)
- The term “Private International Law” may be more descriptive, but also more idealistic, than the term “Conflict of Laws.” The word “international” describes the disputes that fall within the scope of this subject, which are international (or interstate) in that they have contacts with more than one country or state. The word “private” echoes the civil-law division between private and public law and signifies that only private-law disputes fall within the scope of this subject. In contrast, public-law disputes of an international character, such as those between sovereign countries or other international-law persons, fall within the scope of the “law of nations” or “Public International Law.” However, the private-public law division is not fully accepted in the common-law world. Moreover, even accepting that division, the term “Private International Law” is misleading to the extent it suggests that there exists a distinct body of law universally observed by most nations that provides...
- The term “Conflict of Laws” is also not entirely accurate. It seems to assume that, in all cases that have contacts with more than one state or country: (1) each involved state or country has an active or passive desire or claim to have its law applied; (2) these claims “conflict” in the sense of being of roughly equal intensity and validity; and (3) there exists an impartial mechanism of hierarchically superior authority for resolving such conflicts. All three of these assumptions are at least questionable. First, even assuming the propriety of using anthropomorphic terms to describe state objectives, both the hypothesis that a state is “interested” in the outcome of disputes between private persons and the concomitant assumption that the application of its law indeed effectuates that objective are the subject of intense debate; second, not all multistate cases necessarily involve conflicting state claims or interests; and third, even if such conflicting claims are implicated,...
- Westlake, Private International Law (1858). See Restatement, Second, Conflict of Laws § 2 (1971); Dicey, Morris & Collins, Conflict of Laws 33 (14th ed. 2006); Kegel, Introduction, International Encyclopedia of Comparative Law, vol. 3: Private International Law 1 et seq. (1986).
- While many conflicts problems can be resolved through negotiation, mediation, or arbitration, most of them end up in litigation. In planning for this eventuality, or when forced to confront it, parties involved in multistate activity should keep in mind three major questions: (1) Where can or should litigation be initiated? (2) Which law will the court apply? and (3) Where can the resulting judgment be enforced? These three questions correspond to the three consecutive phases that comprise the process of judicial resolution of most conflicts problems, namely: (1) jurisdiction; (2) choice of law; and (3) recognition and enforcement of judgments. In the United States and other common-law systems, these are also the three major divisions of the law of Conflict of Laws. The organization of this book follows these three divisions.
- Preceding the consideration of jurisdiction, the book treats a number of problems and topics pervasive of the whole subject. The chapter immediately following addresses the development and current state of conflicts theories. These are primarily relevant for an understanding of the choice-of-law material. However, in view of the considerable latitude of courts in other areas as well, conflicts theory is more than a tool for the resolution of choice-of-law problems. It is also indicative of a legal system’s and approach to multistate legal problems in general, such as federal-state relations (including Constitutional constraints), the concept of domicile, the identification of false conflicts, and the proper role of local public policy.
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Chapter 3. Determining the Applicable Law Part 2 140 results (showing 5 best matches)
- Justice Scalia, dissenting, found this assertion of no true conflict between American and British law to be a “breathtakingly broad proposition,” which would bring the Sherman Act and other laws into “sharp and unnecessary conflict with the legitimate interests of other countries.” He noted that, in the prevailing conflicts lexicon, there is clearly a “conflict” whenever the two laws provide “different substantive rules,” and that in such a case “a conflict-of-laws analysis is necessary.”
- Rules of conflicts law are rules of the forum. In the United States, conflicts law is therefore primarily state law, subject to the general constraints of federal law noted earlier. This is true regardless of whether the particular case presents an interstate or an international conflicts problem. However, both the federal treaty-making power and the general federal power over “foreign affairs” may place additional limits on state conflicts law or supersede it with rules of federal law. Thus, in the Supreme Court held that an Oregon succession statute which conditioned succession by foreign heirs upon a finding that foreign governmental practices, especially in East bloc countries, assured receipt and not confiscation of the assets by the heirs amounted to a political assessment of the foreign country’s governmental system and thus constituted an impermissible intrusion into the exclusive power of the federal government to conduct the foreign relations of the United States....
- In an opinion written by Justice Souter, the Court held that, because the defendants’ London activities were meant to produce, and did in fact produce, substantial effects in the United States, the case fell within the reach of the Sherman Act. In response to the defendants’ comity argument, the Court said that, “even assuming that in a proper case a court may decline to exercise Sherman Act jurisdiction over foreign conduct …, international comity would not counsel against exercising jurisdiction”
- presents a similar problem. In concluding that a false conflict existed and that the application of forum law was therefore permissible, the Fifth Circuit had first found that Cambodia had no interest in the case nor a policy at stake. However, there is, at least superficially, a difference between the Kansas transferee court had concluded that the transferor court could not constitutionally have applied the law of Mississippi where it sat because all of the relevant contacts lay with the Kansas forum. In the trial court’s view only Kansas had the requisite contacts and interests. In in contrast, the federal court disregarded the local choice-of-law rule—upon finding that Cambodia lacked an interest in the case—and, instead, opted for a conflicts methodology of its own which then led it to forum law. It is this independence in approach which the U.S. Supreme Court rejected in its reversal may anticipate changes in the state approach to choice of law. ...that the Texas choice-of...law
- doctrine promotes intrastate harmony at the price of continued interstate divergence in choice of law. The effect of may be to endanger intrastate harmony as well: so long as federal courts may not anticipate changes in state conflicts law, “… a party who would benefit from application of a standard, territorially-oriented choice-of-law rule reflected in the most recent pronouncement of the highest court of the state would do well to choose the federal district court as forum. Conversely, a party will have far greater chance of success in the state supreme court, if he wishes to argue that the conflicts rule formerly accepted in the state would produce an irrational and unjust result in the case and should be changed in accord with current trends elsewhere.”
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Chapter 19. Property 240 results (showing 5 best matches)
- See Von Bar, Private International Law 489–90 (Gillespie’s trans. 1892); Kuhn, Private International Law 235 (1937). See also Ehrenzweig on Conflict of Laws 617 (1962); Lalive, The Transfer of Chattels in the Conflict of Laws 44 (1955); Zaphiriou, The Transfer of Chattels in Private International Law 39 (1956).
- See Restatement, Second, Conflict of Laws § 214 (1971). Cf. Lorenzen, The Conflict of Laws Relating to Bills and Notes 128 (1919); Stumberg, Commercial Paper and the Conflict of Laws, 6 Vand. L. Rev. 489 (1953).
- See, e.g., Story, Conflict of Laws, § 424 (3d ed. 1846); Goodrich, Two States and Real Estate, 89 Univ. Pa. L. Rev. 417 (1941); Dicey, Morris & Collins, Conflict of Laws 1158 (14th ed. 2006). The venerable standing of the situs rule is evidenced in Stein, Bartolus, The Conflict of Laws and the Roman Law, in Multum non multa-Festschrift für Kurt Lipstein 251, 257 (P. Feuerstein & C. Parry, eds.1980).
- 5 Hurl. & N. at 744 (1960). See Dicey, Morris & Collins, Conflict of Laws 1162 (14th ed.2006); Graveson, Conflict of Laws, 456 (7th ed.1974). See also Alcock v. Smith (1892) 1 Ch. 238; Embiricos v. Anglo–Austrian Bank, (1905) 1 K.B. 677.
- See Vernon, Recorded Chattel Securities in the Conflict of Laws, 47 Iowa L. Rev. 346 (1962). Cf. Ehrenzweig on Conflict of Laws § 238 (1962); Budget Plan, Inc. v. Sterling A. Orr, 334 Mass. 599, 137 N.E.2d 918 (1956).
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Chapter 3. Determining the Applicable Law Part 3 246 results (showing 5 best matches)
- For summaries of the various views see Robertson, Characterization in the Conflict of Laws, Ch. II (1940); 1 Rabel, The Conflict of Laws, 52 (2d ed.1958); Dicey, Morris & Collins, Conflict of Laws 37 et seq. (14th ed.2006).
- Compare Falconbridge, Conflict of Laws, Ch. 3 (2d ed. 1954) with Robertson, Characterization in the Conflict of Laws, 11 (1940) with Lorenzen, The Qualification, Classification and Characterization Problem in Conflict of Laws, 50 Yale L.J. 743 (1941). See also Graveson, supra n.1, at 43 et seq.
- Cf. R. Weintraub, Commentary on the Conflict of Laws 81–83 (5th ed.2006); Hay, Unjust Enrichment in the Conflict of Laws: A Comparative View of German Law and the American Restatement 2d, 26 Am. J. Comp. L. 1, 35–40 (1978).
- The scope of the exception is similarly limited in other conflicts systems: For law, see R. Graveson, Conflict of Laws 165 et seq. (7th ed. 1974); Federal Statute on Conflict of Laws § 6, Bundesgesetzblatt 1978, No. 304; Introductory Law to the Civil Code (EGBGB) Art. 6 and Kegel & Schurig, Internationales Privatrecht 525 et seq. (9th ed. 2004) with cases; Federal Statute on Conflict of Laws Private International Law Art. 17. In
- See Restatement, Second, Conflict of Laws §§ 223 (validity and effect of a transfer of an interest in land), 245 (validity and effect of a transfer of an interest in a chattel), 260, 263 (succession to interests in movables); U.C.C. §§ 2–402 (rights of creditors against sold goods), 2A–105 (law applicable to leased goods covered by certificate of title), 4–102 (applicability of the Article on bank deposits and collections), 6–102 (bulk transfers) (repeal of Article 6 recommended); 8–106 (applicability of the Article on investment securities), 9–103 (perfection provisions of the Article on secured transactions); Richards v. United States, 369 U.S. 1, 12–13, 82 S.Ct. 585, 592–593, 7 L.Ed.2d 492 (1962): reference in the Federal Tort Claims Act to the law of the “place where the act or omission occurred” includes the whole law (including conflicts law) of that place. See also Sosa v. Alvarez–Machain, 542 U.S. 692, 700–01, 124 S.Ct. 2739, 2747–48, 159 L.Ed.2d 718 (2004) (The “... ...of...
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Chapter 4. Domicile 300 results (showing 5 best matches)
- See, e.g., Restatement, Second, Conflict of Laws §§ 70, 258, 285 (1971); Stumberg, The Status of Children in the Conflict of Laws, 8 U. Chi. L. Rev. 42 (1940); Graveson, Conflict of Laws 188 (7th ed. 1974).
- See 1 Beale, Conflict of Laws 154 (1935); Stumberg, Principles of Conflict of Laws 26 (3d ed.1963); Restatement, Second, Conflict of Laws § 17 (1971).
- Restatement, Second, Conflict of Laws § 11 (1971). Perhaps as apt a definition as any is that of Justice Holmes in Bergner & Engel Brewing Co. v. Dreyfus, 172 Mass. 154, 157, 51 N.E. 531, 532 (1898): “[W]hat the law means by domicile is the one technically pre-eminent headquarters, which as a result either of fact or of fiction every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined.” See also Graveson, Conflict of Laws 185 (7th ed.1974); Castel, Canadian Conflict of Laws 83 (4th ed.1997).
- See Dicey & Morris, supra n.1 at 134; Graveson, Conflict of Laws 214 (7th ed. 1974); J.–G. Castel, Canadian Conflict of Laws 85–87 (4th ed. 1997).
- First National Bank v. Balcom, 35 Conn. 351 (1868); In re Jones’ Estate, 192 Iowa 78, 182 N.W. 227 (1921); Ness v. Commissioner of Corporations and Taxation, 279 Mass. 369, 181 N.E. 178 (1932); Alvord & Alvord v. Patenotre, 196 Misc. 524, 92 N.Y.S.2d 514 (1949); Plant v. Harrison, 36 Misc. 649, 74 N.Y.S. 411 (1902); Restatement, Second, Conflict of Laws § 19 (1971); Stumberg, Conflict of Laws 31 (3d ed. 1963). But cf. Hyder v. Hyder, 16 Tenn.App. 64, 66 S.W.2d 235 (1932); Minor, Conflict of Laws § 66 (1901); Story, Conflict of Laws §§ 47, 48 (8th ed. 1883). Most of the few receptive early American authorities limited the doctrine to cases in which the question arose while the party was returning to the domicile of origin. Jacobs, Law of Domicile § 191 (1887). See Reed’s Appeal, 71 Pa. 378 (1872); Allen v. Thomason, 30 Tenn. (11 Humph.) 536 (1850); Denny v. Sumner County, 134 Tenn. 468, 184 S.W. 14 (1916). See also Stein v. Fleischmann Co., 237 Fed. 679, 680 (S.D.N.Y.1916). This...
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Chapter 17. Torts Part 3 247 results (showing 5 best matches)
- Unlike other tort conflicts, judicial experience in resolving product-liability conflicts is not susceptible to being recast into descriptive choice-of-law rules that would reproduce the results of the case law with sufficient accuracy. However, one who wishes to predict the likely choice-of-law outcome of a product-liability conflict may proceed along the following starting assumptions:
- Professor David Cavers has also advocated similar results for cross-border torts. His third principle of preference covers cross-border false conflicts falling within the third pattern discussed above and calls for the application of the law of the state of conduct. His first principle covers the cross-border true conflicts falling within the fourth pattern discussed above and calls for the application of the law of the state of injury.
- The inherent complexity of products liability conflicts as well as the courts’ uneven performance in handling these conflicts raise the question of whether choice-of-law rules for these conflicts are desirable and, if so, whether they are feasible. The discussion below provides the means for exploring these questions by presenting some rules that have either been enacted or proposed for products liability conflicts in the last two decades.
- If one assumes that the goal of the American choice-of-law revolution was to banish territoriality from tort conflicts, one would have to conclude that the revolution has scored only a partial victory. However, as noted earlier, such an assumption would be incorrect. The revolution’s goals were neither as deliberate nor as narrow. The chief goal was to free American choice-of-law from the shackles of a mechanical rule that inexorably required the application of the law of a state that had a single contact—which happened to be territorial—regardless of any other contacts or factors, and regardless of the issue involved in the conflict or the content of the conflicting laws. Judged in this light, the revolution has succeeded in demolishing not only this particular rule, but also the system that gave birth to it. Along the way, the revolution has brought about a new accommodation or equilibrium between territoriality and personality.
- The remaining conduct-regulation conflicts are those in which the conduct in question does not violate the “lower” standards of the conduct-state but does violate the “higher” standards of the injury-state. In interest analysis terminology, these cases usually present the true conflict paradigm because each state has a legitimate claim and interest to apply its law. The state of conduct has an interest in protecting conduct occurring within its territory and comporting to its standards, while the state of injury has an interest in deterring conduct it considers tortious from causing injury within its territory. A choice between the two conflicting laws must be made and, as the following discussion indicates, most courts choose the law of the state of injury.
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Chapter 3. Determining the Applicable Law 151 results (showing 5 best matches)
- The manner in which characterization should be approached has been very much disputed. The approaches have varied as to whether all or any of these matters are to be determined by the doctrinal context of the forum or of the other legal systems involved. The first step, subject matter characterization, is controlled by practical necessity by the forum’s legal system including its conflict-of-laws rules. The second part of the problem, identifying the significant connecting factors, is an integral portion of the conflict-of-laws doctrinal context to which the courts of the forum look for guidance in this kind of a case. As such, the significance of the connecting factors is subject to the policy of the forum reflected in its conflict-of-laws doctrine. The determination of the problem of the third step is more difficult and controversial. Here reliance on a rule of thumb is dangerous. Since one purpose of conflict-of-laws doctrine is to achieve some measure of uniformity of result...
- the Court was concerned that there be uniformity of decision as between state and federal courts sitting in the same state: it opted for intrastate over interstate uniformity with respect to conflicts decisions by federal courts. The assumption of the Court has been that avoidance of intrastate forum shopping requires the application of to conflicts law. However, to the extent that federal conflicts decisions are based on the existence of federal authority to order relations among the states—which, according to would not be the case with respect to substantive law—such decisions would state conflicts law under the Supremacy Clause. Under this view, the states would be required to apply the federal conflicts law in state court cases. Thus, both intrastate interstate uniformity could be achieved by adopting a federal conflicts law. However, was in fact a conflicts case and the Court’s recent decision in in requiring federal courts to apply state choice of law in diversity cases...
- In determining the applicable law, the court’s analysis will include—expressly or by implication—a number of steps that are pervasive to the entire field of conflict of laws and to resolving its problems. An initial step involves the of the of the or issues in the case (e.g., tort or contract, interspousal immunity as raising issues of tort or family law), the and whether the question raises a problem of or of law. The inquiry will then seek to determine whether the issue to be resolved presents a true conflict or whether a “false conflict” exists with respect to the potentially applicable foreign rule of law so as to make the use of local law appropriate.
- When the characterization of the subject matter and an examination of the choice-of-law rules and of the policies have disclosed the existence of a “true conflict” to which, under forum law, the law of another jurisdiction is to be applied, the question arises: how much of the foreign law? The preceding section addresses one aspect of the problem: the forum applies the foreign substantive law, while issues characterized as “procedural” are governed by the law of the forum. A further question is whether the reference to the foreign law also encompasses the choice-of-law rules of that jurisdiction. Consideration of the foreign choice-of-law might disclose that the foreign jurisdiction—had the action been commenced there—would have referred to the forum ( ). Alternatively, the foreign conflicts rule might refer to yet another (third) jurisdiction ( ). Both possibilities are collectively known as the problem of
- A choice-of-law analysis that uses the concepts of due process as applied to jurisdiction in order to determine when a state has the sufficiently “significant contacts” constitutionally to apply its law overlooks that jurisdictional and choice-of-law considerations, while similar, are not the same. The connection of the state must be to the to gain jurisdiction. The nexus of the state and the provides the necessary relation for the application of local law. Such a view of due process analysis can adequately deal with issues of fairness to the parties—plaintiffs defendants; it can also test when a state’s power is sufficient to adjudicate by application of the However, a due process analysis cannot address problems of conflicting state interests: when may a state with significant relation to a transaction apply its law and disregard the contrary existing interests of a sister-state? In a few limited areas the Supreme Court has set the balance of conflicting state interests; but...
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Chapter 18. Contracts Part 4 218 results (showing 5 best matches)
- Contracts of Sale:
- On “self-limited” choice-of-law rules, see De Nova, An Australian Case on the Application of Spatially Conditioned Internal Rules, 22 Rev. Hell. 25 (1969); Kelly, Localising Rules in the Conflict of Laws (1974); Sedler, Functionally–Restrictive Rules in American Conflicts Law, 50 So. Cal. L. Rev. 27 (1976); Lipstein, Inherent Limitations in Statutes and the Conflict of Laws, 26 Int’l & Comp. L.Q. 884 (1977); Hay, Comments on “Self–Limited Rules of Law” in American Conflicts Methodology, 30 Am. J. Comp. L. 129 (Supp. 1982).
- Reese would refer the issue of whether a contractual relationship was created between the third party and the principal to the law applicable to the main contract. Reese, Agency in the Conflict of Laws, in: XXth Century Comparative and Conflicts Law Legal Essays in Honor of Hessel E. Yntema 409, 417 (1960). The Second Restatement, includes undisclosed agency in its comprehensive rule which looks primarily to the place of acting. Restatement, Second, Conflict of Laws § 292, cmnt. (a) (1971). Under either approach, California law would have applied to the case under discussion.
- “… [A]ccount is taken only of interests in the application of a system of law independently of the content of individual rules; there is (aside from narrow cases of party autonomy) no ‘raisin theory’ which would recognize a party’s interest to apply only rules that are favorable to it, not those that are unfavorable.… One gets into the devil’s kitchen by renouncing-in the already complex field of [Private International Law]-clear easily recognizable and easily manageable conflicts rules; the dissolution of conflicts law by the American reformers offers here the best demonstrative lesson.” Kegel, Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers, 27 Am. J. Comp. L. 615, 621–22 (1979).
- This result thus differs from the ordinary rule in American conflicts law that the stipulation of a state’s law extends only to that state’s “local law,” and does not include that state’s choice of law rules. Restatement (Second) Conflict of Laws § 187(3) (1971). By ratifying the Convention, contracting states have made it—as it were—their “local law for international cases:” hence there is a need to specify such a state’s “local law for intrastate cases,” if this is what the parties intend.
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Chapter 2. The Development and Current State of Approaches to Choice of Law Part 3 210 results (showing 5 best matches)
- For the scarcity of American conflicts legislation and “the persistent reluctance of American conflicts scholars to advocate legislative solutions,” see Cavers, Legislative Choice of Law: Some European Examples, 44 So. Calif. L. Rev. 340, 359–60 (1971). For the reasons, see, e.g., Currie, Comments on Babcock v. Jackson, 63 Colum. L. Rev. 1233, at 1241 (1963) (“[N]ew efforts to find short cuts and syntheses should be sternly discouraged. We are beginning to recover from a long siege of intoxication resulting from overindulgence in generalities; for a while, at least, total abstinence should be enforced”); Reese, Statutes in Choice of Law, 35 Am. J. Comp. L. 395, 396 (1987) (“[n]o legislature, no matter how wise it may be, could envisage all of the almost endless possibilities.”); Trautman, Reflections On Conflict-of-Laws Methodology, 32 Hastings L.J. 1612, 1621 (1981) (“[L]egislative direction is inherently incapable of capturing the nuance and sophistication necessary for just and...
- , supra n.7, at 141–364; Borchers, Nebraska Choice of Law: A Synthesis, 39 Creighton L. Rev. 1 (2005); Haller, Ohio Choice-of-Law Rules: a Guide to the Labyrinth, 44 Ohio St. L.J. 239 (1983); Pepe, Kansas’s Conflict of Laws Rules for Insurance Contract Cases: It’s Time to Change Policies, 46 U. Kan. L. Rev. 819 (1998); Richman, A New Breed of Smart Empirically Derived Conflicts Rules: Better Law than “Better Law” in the Post-tort Reform Era: Reviewing Symeonides, the American Choice-of-law Revolution: Past, Present and Future (2006) 82 Tul. L. Rev. 2181 (2008); Sedler, the Louisiana Codification and Tort Rules of Choice of Law, 60 La. L. Rev. 1331 (2000); Sedler, Rules of Choice of Law Versus Choice-of-Law Rules: Judicial Method in Conflicts Torts Cases, 44 Tenn. L. Rev. 975, 1033–1041 (1977); Sedler, Choice of Law in Conflicts Torts Cases: A Third Restatement or Rules of Choice of Law?, 75 Ind. L.J. 615 (2000); Symeonides, A Choice-of-Law Rule for Conflicts Involving Stolen...
- See Symeonides, The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons, 82 Tul. L.Rev. 1741 (2008). The reasons for which European PIL systems never—or never wholeheartedly—followed in the path of the American conflicts revolution, either in direction or in degree, are many and varied. With regard to continental Europe, the subject has been discussed authoritatively. See, e.g., Audit, A Continental Lawyer Looks at Contemporary American Choice-of-Law Principles, 27 Am. J. Comp. L. 589 (1979); Jayme, The American Conflicts Revolution and its Impact on European Private International Law, in Forty Years On: The Evolution of Postwar Private International Law in Europe, Centrum voor Buitenlands Recht en Internationaal Privaatrecht Universiteit van Amsterdam, 15 (1992); Kegel, Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers, 27 Am. J. Comp. L. 615 (1979); Kropholler, & von Hein, From Approach to Rule–Orientation in...
- See supra § 2.12; Kegel, Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers, 27 Am. J. Comp. L. 615, 617 (1979) (when material justice considerations are intermingled with conflicts law, “conflicts law disappears into the ‘black hole’ of substantive law.”); Kegel, Begriffs-und Interessenjurisprudenz im internationalen Privatrecht, in: Festschrift für Lewald 259, 270 ff. (1953); Kegel in F. Juenger, Zum Wandel des Internationalen Privatrechts 35, 44 (113 Schriften der Juristischen Studiengesellschaft 1974); Kegel & Schurig, Internationales Privatrecht 134 et seq. 145 (9th ed. 2004); Kahn–Freund, General Problems of Private International Law, 143 Recueil des Cours 139, at 466 (1974–III) (In a case like , “the question is not whether it is just or not that the driver should be liable to the guest, … [but rather] whether it is more just to apply the law of Ontario or that of New York.… [Judges may have preferences for one law over another but] it is...
- See, e.g., A. Dickinson, The Rome II Regulation: A Commentary (2009); J. Ahern & W. Binchy, The Rome II Regulation on the Law Applicable to Non–Contractual Obligations: A New International Litigation Regime (2009); R. Plender & M. Wilderspin, supra n. 71; G. Calliess, The Rome Regulations, supra n. 71; Basedow, Federal Choice of Law in Europe and the United States—A Comparative Account of Interstate Conflicts, 82 Tul. L. Rev. 2119 (2008); Beaumont & Tang, Classification of Delictual Damages— and the Rome II Regulation, 12 Edinb. Rev. 131 (2008); De Boer, Party Autonomy and its Limitations in the Rome II Regulation, 9 Y.B. Priv. Int’l L. 19 (2008); de Lima Pineiro, Choice of Law on Non–Contractual Obligations between Communiiterization and Globalization: A First Assessment of EC Regulation Rome II, Riv. dir. int. priv. proc. 5 (2008); Chong, Choice of Law for Unjust Enrichment/Restitution and the Rome II Regulation, 57 Int’l & Comp. L.Q. 863 (2008); Dornis, “When in Rome, Do as the...
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Chapter 2. The Development and Current State of Approaches to Choice of Law 238 results (showing 5 best matches)
- remained within the confines of the classical view of private international law in one basic respect—they subscribed to the same core assumption that the function of conflicts law is to achieve “the (“conflicts justice”) rather than “the (“material justice”). The classical view is usually associated with Savigny, although both Story and later Beale had also espoused it. It proceeds from the basic premise that the function of conflicts law is simply to refer each multistate case to the that has the “most appropriate” relationship for supplying the applicable law, rather than to directly search for the proper law or, much less, the proper Despite differences on defining and especially measuring the “propriety” of such a relationship, the proponents of the classical view are unanimous in their belief that this propriety is to be defined in geographical or spatial terms rather than in terms of the content of the applicable law or the quality of the solution it produces. ...law’...
- A central theme in Ehrenzweig’s approach is his oft-stated contention that traditional conflicts theory erroneously presupposed the existence of a “superlaw” binding choice-of-law rules. He correctly noted that in the United States there are few federal constitutional constraints and few federal treaties or statutory provisions touching upon conflicts problems and that, consequently, the (particular state) forum is the source of conflicts law. This is not a startling proposition: most commentators would agree that conflicts rules are local law, even those derived from national constitutional law or nationally adopted international treaties. The lack of a “superlaw” explains the lack of external compulsion to formulate particular conflicts rules but obscures, through the tendentious connotation of the label, that even the forum is not an island unto itself. The fact that local law is the source of conflicts rules does not mean that even when such rules are inapplicable to a case, the...
- marked a drastic departure from the universalistic conception of private international law that characterized earlier generations of American conflicts scholars, including Story. Cook’s subliminal message may well have been that the function of conflicts law is not to preserve international order, but rather to carry out local law and policy.
- In Currie’s view, when a court confronted with a case with foreign elements is asked to apply the law of another state, the court should first inquire into the policies expressed in the laws of the involved states and into the circumstances in which it is reasonable for each state to assert an interest in the application of these policies. This inquiry may lead to three possibilities which correspond to the three, henceforth well-known if not well-accepted, categories of conflicts: (a) only one of the involved states would be interested in applying its law (the “
- It is generally believed that academic commentators have had a greater influence in the development of conflicts law than of any other branch of American law. Whether this is due to the perceived esoteric nature of the subject matter, the dearth of English doctrine during the formative period of American conflicts law, or the relatively infrequent occurrence of conflicts cases in general—which makes difficult the accumulation of judicial expertise on the subject—is beside the point. The fact remains that it is academic commentators like Story and later Beale who provided the theoretical underpinnings of the traditional choice-of-law system that lasted for more than a century. It is also academic commentators like Cook, Cavers, and Currie’s who have pinpointed and articulated that system’s deficiencies and have instigated dissension from it.
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Chapter 20. Succession 176 results (showing 5 best matches)
- See R. Weintraub, Commentary on the Conflict of Laws § 8.7 (5th ed.2006); Morris, Intestate Succession to Land and the Conflict of Laws, 85 L.Q. Rev. 339 (1969); Hancock, Equitable Conversion and the Land Taboo in Conflict of Laws, 17 Stan. L. Rev. 1095, 1115 (1965); Baxter, Choice of Law and the Federal System, 16 Stan. L. Rev. 1, 16 (1963); Sedler, Mofatt Hancock and Conflict of Laws, 37 U. Toronto L.J. 62 (1987). Cf. U.P.C §§ 2–201, 4–401 (2006). See also G. Miller, International Aspects of Intestate Succession, 1988 Conv. & Prop. L. 30 (1988); Note, Conflicts of Law and Succession, Interest Analysis as an Alternative, 59 Tul. L. Rev. 389 (1984). In most civil law countries, perhaps in most countries of the world, the unity concept prevails. This concept calls for the application of the same law of succession to all assets in contrast to the scission approach that distinguishes between movables and immovables with regard to many issues in the common law states. With the... ...of...
- Restatement, Second, Conflict of Laws § 263, cmnt. (i) (1971); Bozeman, Conflict of Laws Relating to Wills, Probate Decrees and Estates, 49 A.B.A.J. 670, 671 (1963).
- By reason of physical control, the disposition of a decedent’s property is subject to the law of the situs of the property. However, if the decedent has died domiciled in another state, the conflict-of-laws doctrine of the situs looks to the rules for devolution of movables prevailing at the domicile, and not the local statute on the subject. Thus, this conflict-of-laws rule is a part of the law of the situs of the property, unless modified by statute. The real reason for the choice-of-law reference seems to be one of convenience. The desirability of having a person’s estate treated as a unit under a commonly recognized law, no matter how widely the items may be scattered, is a paramount consideration.
- Note, Choice of Law Rules for Construction and Interpretation of Written Instruments, 72 Harv. L. Rev. 1154 (1959); Restatement, Second, Conflict of laws § 240, cmnt. (c) (1971). Cf. 2 A. Corbin, Corbin on Contracts § 534 (1950).
- T. Atkinson, Handbook of the Law of Wills § 146 (2d ed.1953); Restatement, Second, Conflict of Laws §§ 240, 264, cmnt. (d) (1971).
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Chapter 13. Forming Domestic Relationships 277 results (showing 5 best matches)
- 1 Rabel, The Conflict of Laws 224 (2d ed. 1958); Dicey, Morris & Collins, Conflict of Laws 789 (14th ed.2006); Graveson, Conflict of Laws, 251 (7th ed.1974). See generally Palsson, Marriage in Comparative Conflict of Laws: Substantive Conditions (1981); Fentiman, Validity of Marriage and the Proper Law, 44 Camb. L.J. 256 (1985); Smart, Interest Analysis, False Conflicts and Essential Validity of Marriage, 14 Anglo–Am. L. Rev. 225 (1985). See Vervaecke v. Smith,  1 A.C. 145.
- See Baade, Marriage and Divorce in American Conflicts Law: Governmental Interests Analysis and the Restatement (Second), 72 Colum. L. Rev. 329 (1972); Engdahl, Proposal for a Benign Revolution in Marriage Law and Marriage Conflicts Law, 55 Iowa L. Rev. 56 (1969); Reese, Marriage in American Conflicts Law, 26 Int’l & Comp. L.Q. 952 (1977); Swan, A New Approach to Marriage and Divorce in the Conflict of Laws, 24 Toronto L.J. 17 (1974); Taintor, Marriage in the Conflict of Laws, 9 Vand. L. Rev. 607 (1956); R. Weintraub, Commentary on the Conflict of Laws 310–16 (5th ed.2006). Cf. 2 A. Ehrenzweig & E. Jayme, Private International Law 39 (1973).
- Cf. Restatement, Second, Conflict of Laws § 283, cmnt. (j) (1971). See Turner, Marriage of Minors, 8 West.Aust.L. Rev. 319 (1968). Compare R. Graveson, Conflict of Laws 251, 272 (7th ed. 1974); 2 A. Ehrenzweig & E. Jayme, Private International Law 159 (1973); Dicey, Morris & Collins, Conflict of Laws 789 et seq. (14th ed.2006).
- See Dicey, Morris & Collins, Conflict of Laws 789 et seq. (14th ed.2006); R. Graveson, Conflict of Laws 263 (7th ed.1974). Cf. Beale, Conflict of Laws § 132.5 (1935). See also Davis, Capacity to Contract a Polygamous Marriage, 5 Fed. L. Rev. 294 (1973); Jaffey, The Essential Validity of Marriage in the English Conflict of Laws, 41 Mod. L. Rev. 38 (1978); Note, Capacity to Contract a Polygamous Marriage, 36 Mod. L. Rev. 291 (1973); Note, Capacity for Polygamy, 32 Camb. L.J. 43 (1973).
- Restatement, Second, Conflict of Laws § 283, Reporter’s Note (1971). See also Ehrenzweig, supra n.12, at 154; Graveson, Conflict of Laws 278 (7th ed. 1974).
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Chapter 17. Torts Part 4 348 results (showing 5 best matches)
- For example, as one author notes, “four of the five tort conflicts decided by the Rhode Island Supreme Court applied the law of the forum and granted recovery to a forum plaintiff.” Symeonides, supra n.5, at 83. He cites Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917 (1968); Brown v. Church of the Holy Name of Jesus, 105 R.I. 322, 252 A.2d 176 (1969); Pardey v. Boulevard Billiard Club, 518 A.2d 1349 (R.I. 1986); and Cribb v. Augustin, 696 A.2d 285 (R.I.1997). In the fifth case, Victoria v. Smythe, 703 A.2d 619 (R.I. 1997), the court applied non-forum law, but that law favored the forum plaintiff as much as the forum’s law. See also La Plante v. American Honda Motor Co., Inc., 27 F.3d 731 (1st Cir.1994) (decided under Rhode Island conflicts law; applying the forum’s pro-recovery law to a products liability action in which the forum’s only contact was the plaintiff’s domicile). The author also notes that, “in two of the three cases in which the Minnesota Supreme Court applied...
- Article 3515 states that, except as otherwise provided by the codification’s specific articles, the applicable law shall be the law of “the state whose policies would be most seriously impaired if its law were not applied to that issue.” That state is determined by evaluating the “strength and pertinence of the relevant policies of all involved states” in light of: (1) the relationship of each state to the parties and the dispute; and (2) “the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.” La. Civ. Code, art. 3515 (1991, effective Jan. 1, 1992). Similar phraseology is contained in articles 3519, 3537, and 3542, which are the residual articles for status, contract, and tort conflicts, respectively. For a discussion by the codification’s drafter, see Symeonides, The
- Symeonides, The Need for a Third Conflicts Restatement (And a Proposal for Tort Conflicts), 75 Ind. L.J. 437, 443–44 (2000); Richman & Reynolds, Prologomenon to an Empirical Restatement of Conflicts, 75 Ind. L. J. 417, 417 (2000): (“Attempting to ‘restate’ the law of choice of law in 1971 was analogous to trying to write a history of World War II during the Battle of Stalingrad.”)
- , 67 Cal.2d at 556, 63 Cal.Rptr. at 34, 432 P.2d at 730. B. Currie, The Disinterested Third State, 1959 Law & Contemp. Prob. 754. Currie believed that the disinterested forum was a very rare case. Id. at 765. He suggested that, when faced with this situation, a court could dismiss the action on grounds; avoid the conflict by construing the competing laws so as to find a false conflict; or, when a true conflict existed, to make the decision between competing laws. Finally, a court could “reasonably apply its own law,” in a situation in which forum law and one of the other competing state’s law coincide. Id. at 773, 780. However, he recognized that, if three different laws were presented, application of the law of the forum might not be justified and the forum could be left “to the free choice that amounts to the exercise of pure legislative judgment.” Id. at 780.
- See Cavers, Conflicts of Law Roundtable–The Value of Principled Preference, 49 Tex.L.Rev. 211, 215 (1971) (“I have recognized the influence of the better law in choice of law decisions not as a desideratum but as an inevitable psychological reaction in marginal cases, a tendency not to be encouraged but to be taken into account in explaining decisions.”). But see Juenger, Choice of Law in Interstate Torts, 118 U. Pa. L.Rev. 202 (1969), who views the “better law” as a sufficient criterion by itself for the decision of choice-of-law cases. He refined his approach in his General Course on Private International Law, 193 Recueil des Cours 123–387 (1985–IV), in which he advocated “a selection process based on the qualitative evaluation of conflicting rules of decision.” Id. at 321. For his criticism of interest analysis, see also Juenger, Choice of Law: How it Ought Not To Be, 48 Mercer L. Rev. 757 (1997).
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Chapter 17. Torts Part 2 119 results (showing 5 best matches)
- When the tortfeasor and the victim are domiciled in different states and the tort is committed in whole or in part in a third state, the resulting conflict can be quite complex. Depending on the content of the laws of the three states, these cases can present the false conflict, true conflict, or no-interest paradigms, but the involvement of the third state usually adds to the difficulty of resolving the conflict.
- A recent study has identified 16 loss-distribution conflicts (other than product-liability conflicts) falling within this pattern. Thirteen of the 16 cases applied the pro-plaintiff law of the state of conduct, while three cases applied the pro-defendant law of the state of injury.
- As noted earlier, the cases of the pattern (in which the conduct occurred in a pro-defendant state and the injury in a pro-plaintiff state) present the true conflict paradigm. Under Professor Currie’s assumptions and analysis, all of those cases would have been resolved under the law of the forum state because, in Currie’s view, courts lack the ability or authority to weigh conflicting state interests and thus potentially subordinate the interests of the forum state to those of another state. Indeed, in more than half but less than two thirds of these cases, the courts applied the pro-plaintiff law of the state of injury (which was also the victim’s domicile in all but one of those cases). However, none of these applied the forum law for the reasons advanced by Currie—namely, the court’s inability or lack of authority to weigh conflicting state interests. On the contrary, in many of these cases, the courts openly engaged in weighing the conflicting state interests. All but one of...of
- This is one of those many areas in conflicts law in which there is plenty of room for disagreement, but it is difficult to accept that these, often coincidental, differences in the origin or wording of these pro-defendant or pro-plaintiff rules should determine the outcome of the conflicts between them. It is also difficult to accept that the outcome should depend on whether the pro-defendant rule is that of the forum or instead of the other involved state, as both Weinberg and Sedler seem to suggest. The truth is that, ironically, the “no-interest” cases are more problematic for interests analysts than are true conflicts. It is perfectly logical and consistent to resolve a true conflict by applying the law of the state that has the greatest or strongest interest, or whose interests would otherwise suffer the most serious impairment. But what is one to ...-interest cases? Try to find the most uninterested state? This is just another way of saying that interest analysis, being...
- While common-domicile cases are relatively easy because they are likely to present the false conflict paradigm, split-domicile cases are more problematic. This section discusses conflicts arising from split-domicile intrastate torts, namely situations in which the tortfeasor and the victim are domiciled in different states that have different laws on the disputed issues, which is also the domicile of either the tortfeasor or the victim. In interest analysis terminology, these cases are likely to present either the true conflict or the “no-interest” paradigms, depending on the content of the laws of the two involved states. The true conflict paradigm is present when each state has a loss-distribution rule that protects its domiciliary, while the “no-interest” paradigm is present in the converse situation.
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Chapter 18. Contracts Part 3 213 results (showing 5 best matches)
- The rigidity of the First Restatement’s approach was heightened by the fact that the “place of contracting” was determined on the basis of the substantive rules of contract law of the forum. See Restatement, Conflict of Laws § 311 et seq. (1934). The reason for applying the law of contracting, viz. that a binding obligation was vested there, is thus circular since the localization of that place results from a prior choice of law: see Cook, “Contracts” and the Conflict of Laws, 31 Ill. L. Rev. 143, 158–163 (1936). Cook, furthermore, showed that the vested rights theory does not necessarily protect foreign law-created rights unless the conflicts rules of the foreign forum were considered as well. Section 7(b) of the First Restatement, however, rejected the renvoi. Therefore “… the right … enforced by the forum … would necessarily be a ‘home-created’ and not a ‘foreign-created’ right.” Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L.J. 457, 469 (1924).
- A. A. Ehrenzweig, A Treatise on the Conflict of Laws 458 (1962) (original emphasis). See also Ehrenzweig, The Statute of Frauds in the Conflict of Laws: The Basic Rule of Validation, 59 Colum. L. Rev. 874, 992 (1959).
- See infra §§ 18. 3–18.7. The Restatement also provides that, whether an issue belongs to the one or the other category is determined under “the local law of the state selected by application of the rule of § 188,” namely the state whose law would govern in the absence of a choice-of-law clause. Restatement, Second, Conflict of Laws § 187, cmnt. c.
- See, e.g., Glyka v. New England Cord Blood Bank, Inc., 2009 WL 1816955 at *3 (D.Mass. Jun. 25, 2009) (“[a]ll agreements … are governed by Massachusetts law (excluding conflicts of laws)”; Citgo Petroleum Corp. v. Krystal Gas Marketing Co., Inc., 2006 WL 2645133 at *1 (N.D.Okla. Sept. 12, 2006) (“This Agreement is delivered in the State of Oklahoma and is governed by and construed in all respects in accordance with the substantive laws of the State of Oklahoma, excluding conflict of laws provisions.”); Digital Envoy, Inc. v. Google, Inc., 370 F.Supp.2d 1025, 1029 (N.D.Cal.2005) (“the agreement is to be governed by “the laws of the State of California as it applies to a contract made and performed in such state, excluding conflicts of laws principles.”).
- See Restatement, Second, Conflict of Laws § 187(2)(a) (1971) (discussed infra § 18.3); DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677 (Tex.1990), cert. denied 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991) (the parties “cannot require that their contract be governed by the law of a jurisdiction which has no relation whatever to them or their agreement.”). In some countries, a distinction is made between the choice of forum law and non forum law. In England, it is said that “connection with English law is not, as a matter of principle, essential.” Vita Food Products Inc. v. Unus Shipping Co. Ltd.,  A.C. 277 (P.C., per Lord Wright). Dicey, Morris & Collins, The Conflict of Laws 1563 (14th ed. 2006) also point out that, as a practical matter, the parties can also opt in favor of English law by not pleading foreign law, citing to Suisse Atlantique Societe d’Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Centrale,  1 A.C. 361. In civil law countries, courts must...
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Chapter 22. Probate and Administration of Estates 291 results (showing 5 best matches)
- Restatement, Second, Conflict of Laws § 329 (1971). See Hopkins, Conflict of Laws in Administration of Decedents’ Intangibles, 28 Iowa L. Rev. 422, 435 (1943).
- Smith v. Union Bank of Georgetown, 30 U.S. (5 Pet.) 518, 8 L.Ed. 212 (1831); 1 Woerner, The American Law of Administration § 166 (3d ed. 1923); Restatement, Second, Conflict of Laws § 344 (1971). One state of the United States may not, however, give to its own citizens a preference not accorded to citizens of other states. Blake v. McClung, 172 U.S. 239, 19 S.Ct. 165, 43 L.Ed. 432 (1898). The actual results as to exemptions and priorities vary but forum law predominates. See Scoles, Conflict of Laws and Creditors’ Rights in Decedents’ Estates, 42 Iowa L. Rev. 341, 354 (1957).
- See Woerner, The American Law of Administration § 163 (3d ed.1923); Comment, Conflict of Laws—Torts—Proper Party Plaintiff on Wrongful Death Actions, 54 Mich. L. Rev. 821 (1956).
- See supra §§ 15.39–15.41; Stumberg, The Status of Children in the Conflict of Laws, 8 U. Chi. L. Rev. 42 (1940); Stansbury, Custody and Maintenance Law Across State Lines, 10 Law & Contemp. Prob. 819 (1944); Ehrenzweig, Interstate Recognition of Custody Decrees, Law and Reason v. the Restatement, 51 Mich. L. Rev. 345 (1953); Rheinstein, Jurisdiction in Matters of Child Custody, An Analysis of the Cases, 26 Conn. B.J. 48 (1952); Paulsen and Best, Appointment of a Guardian in the Conflict of Laws, 45 Iowa L. Rev. 212 (1960); Ratner, Child Custody in a Federal System, 62 Mich. L. Rev. 795 (1964); Ratner, Legislative Resolution of the Interstate Child Custody Problem: A Reply to Professor Currie and a Proposed Uniform Act, 38 S. Calif. L. Rev. 183 (1965); Goodrich, Custody of Children in Divorce Suits, 7 Cornell L.Q. 1 (1921). See also Sampsell v. Superior Court, 32 Cal.2d 763, 197 P.2d 739 (1948); McDowell v. Gould, 166 Ga. 670, 144 S.E. 206 (1928) (noted 27 Mich. L. Rev. 338 (1929)...
- See Williams v. Zachary, 463 P.2d 343 (Okla.App.1969); Rosemont Enterprises, Inc. v. Lummis, 596 S.W.2d 916 (Tex.Civ.App.1980); Hopkins, Conflict of Laws in Administration of Decedents’ Intangibles (pts. 1 and 2), 28 Iowa L. Rev. 422, 613 (1943); Restatement, Second, Conflict of Laws § 326 (1971).
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Chapter 12. Procedure 222 results (showing 5 best matches)
- Restatement, Second, Conflict of Laws § 187(2) (1971). For criticism of the restrictive U.S. rule see Hay, International versus Interstate Conflicts Law in the United States, 35 Rabels Zeitschrift 429, 459 n.152 (1971).
- For a collection of cases where the court applied forum law under similar circumstances, usually on the basis of various presumptions, see R. Weintraub, Commentary on the Conflict of Law § 3.7, n.284 (5th ed.2006). Furthermore, as Weintraub correctly points out, a functional approach to choice of law may not have led to the application of Saudi Arabian law in the first place under the factual circumstances of the case: Walton, an Arkansas citizen, had been temporarily in Saudi Arabia where his automobile collided with defendant’s truck, driven by defendant’s employee. Defendant was a Delaware corporation, licensed to do business in the New York forum and also did substantial business in Saudi Arabia. Given the flexibility of modern choice-of-law rules, there will be only few case situations in which a court will feel compelled to apply a foreign law. These will often be cases involving foreign immovable property, security interests, and questions of status (but not the incidents
- Comment (h) to § 136, Restatement, Second, Conflict of Laws (1971). See, e.g., Torah Soft, Ltd. v. Drosnin, 224 F.Supp.2d 704, 712 (S.D.N.Y.2002) (“It is well-established that in the absence of proof of foreign law, the law of the forum governs.”)
- Litigation involving parties in foreign jurisdictions or issues that, according to the choice-of-law rules of the forum, require resolution under foreign law (sister-state or foreign-country law) raise further problems, many of them unique to international conflicts cases. Subsequent sections therefore address problems of service abroad of American documents, the taking of evidence abroad, and the ascertainment and proof of aspects of foreign law that become relevant in American litigation.
- F’s recognition of the privilege and concomitant exclusion of the testimony could be justified on the public policy ground that confidential information should not be revealed to a greater extent than determined by F to be fair. See Weinstein, supra n.2, at 544. On the other hand, “the state which has the most significant relationship with the communication has a substantial interest in determining whether evidence of the communication should be privileged.” Restatement, Second, Conflict of Laws, § 139, cmnt. (d) (1971). This result also comports with the probable expectation of the parties. See Reese & Leiwant, Testimonial Privileges and Conflict of Laws, 41 Law & Contemp. Probs. 85, 93 (1977).
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Chapter 23. Corporations, Winding–Up, and Bankruptcy 220 results (showing 5 best matches)
- Restatement, Second, Conflict of Laws § 300, cmnts. (a), (d) (1971). The rule is the same in England. Dicey & Morris, Conflict of Laws 1116 (13th ed.2000).
- A resolution of the choice-of-law problem in favor of federally articulated conflicts rules would also alleviate the problems associated with transfers. At least for cases arising within the same judicial circuit, uniform rules could be established. Conflicts between or among circuits would still occur but do not raise problems different from those encountered in any other area of federal practice. Differences in choice of law, however, could potentially occur in cases of removal of a Texas state court had applied the protective Texas law regarding usury while the federal court honored the parties’ choice of Mississippi law. Despite the fact that, in apparent conflict with the same civil claim or issue may thus be treated differently with respect to choice of law by courts sitting in the same state, the result is justified. Removal to a bankruptcy court is permissible only if that court has subject matter jurisdiction over the claim or cause of action. ...as part of that case...
- A state may also wind-up the local business of a foreign corporation in the absence of its dissolution in the state of incorporation to the extent that such action does not conflict with federal law, particularly the federal bankruptcy law. This power follows from the forum’s authority to regulate the intrastate activities of foreign corporations.
- Dicey, Morris, & Collins, The Conflict of Laws 1335–74 (14th ed. by Collins 2006). But see National Bank of Greece v. Metliss,  A.C. 509 (existence determined under the law of the alleged place of incorporation) and supra § 23.1 n.8.
- A federal common law test for piercing (in claims based on federal law) has not been adopted. The federal court either adopts the state test or frequently finds that there is no conflict between the laws of potentially interested states: there is thus no need to add another, a federal layer.
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Appendix. Researching Conflict of Laws on Westlaw 99 results (showing 5 best matches)
- Conflict of Laws
- • If you know the title of an article but not the journal in which it was published, access the JLR database and search for key terms in the title field. For example, to retrieve the article “Conflicting Approaches: Legalizing Same–Sex Marriage Through Conflicts of Law,” type the following Terms and Connectors query:
- Restatement of the Law–Conflict of Laws
- The fields discussed below are available in Westlaw case law databases you might use for researching issues related to conflict of laws.
- One of the easiest ways to follow recent conflict of law developments is to access the Westlaw Topical Highlights database (WTH). The WTH database contains summaries of recent legal developments, including court decisions, legislation, and materials released by administrative agencies. When you access WTH, you automatically retrieve a list of documents added to the database in the last two weeks.
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Chapter 15. Dissolution of Domestic Relationships and Its Consequences Part 2 259 results (showing 5 best matches)
- See R. Weintraub, Commentary on the Conflict of Laws 319 (5th ed.2006); Restatement, Second, Conflict of Laws § 285 (1971). See also Wasserman, Divorce and Domicile: Time to Sever the Knot, 39 Wm. & Mary L. Rev. 1 (1997).
- The American emphasis on jurisdiction and the application of local law to divorce may enable a foreign court to apply its own law by accepting the renvoi. See supra §§ 3.13–3.14. To illustrate: the foreign conflicts rule refers to the party’s law of nationality, in the case of an American presumably the law of his last American domicile. That law contains no choice-of-law provisions for divorce; rather, it is implicit that the American court would use its own substantive law if it had jurisdiction in the matter. The foreign court thus may inquire whether, under American law, it has jurisdiction and, if so, a reference to its own substantive law as the applicable law. Use of its own law will have no effect on the recognition of the decree in the United States, yet obviously would be easier than a need to research and apply unfamiliar foreign (American) law. This “hidden renvoi” has been used in Austria, Germany, and Switzerland. See Hay, The American “Covenant Marriage” in the
- In the case of “covenant marriages,” the parties originally chose covenant-state law. Nonetheless, a later state with divorce jurisdiction, e.g., petitioner’s (new) state of domicile may, and usually will apply its own, possibly more permissible law. See Hay, The American “Covenant Marriage” in the Conflict of Laws, 64 La.L.Rev. 43 (2003).
- The EC Regulation deals only with jurisdiction to grant a divorce to EU nationals or persons with habitual residence in the EU. It does not provide a substantive divorce law. The national court with jurisdiction under the Regulation therefore determines the applicable substantive law according to its own conflict-of-laws rules ( also the paragraph immediately following). German conflicts law (as do many other systems) looks to the law of nationality of each of the spouses (cumulatively); a national law that forbids divorce is displaced by German law only when one of the spouses is German. See Art. 17 EGBGB. In a case involving two Syrians, belonging to different Christian denominations, the German court found that Syrian law referred to the applicable religious law and that the latter was Roman Catholic canon law (the ). Canon 853 provides that the bonds of matrimony cannot be dissolved by human authority. The divorce petition was denied. The Court of Appeal affirmed, rejection...
- Whealton v. Whealton, 67 Cal.2d 656, 63 Cal.Rptr. 291, 432 P.2d 979 (1967); Brawer v. Pinkins, 164 Misc.2d 1018, 626 N.Y.S.2d 674 (1995). The Second Restatement reaches the same result by specifying the law which “determines the validity of the marriage.” Restatement, Second, Conflict of Laws § 286 (1971). That law, in turn, is said to be the law of the state where the marriage was contracted. Id. § 283(2).
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Chapter 24. Recognition and Enforcement of Foreign Judgments and Decrees Part 2 334 results (showing 5 best matches)
- Dicey, Morris & Collins, The Conflict of Laws 566 (14th ed.2006); Graveson, Conflict of Laws 619–35 (7th ed. 1974).
- effect of the foreign decree on local land is the concern for the integrity of the local recording system and the protection it affords to local parties. But see Weintraub, Commentary on the Conflict of Laws 543–46, 560–90 (5th ed.2006); Hancock, Full Faith and Credit to Foreign Laws and Judgments in Real Property Litigation: The Supreme Court and the Land Taboo, 18 Stan. L. Rev. 1299 (1966); Weintraub, An Inquiry into the Utility of “Situs” As A Concept in Conflict Analysis, 52 Cornell L.Q. 1 (1966). See also Hay, The Situs Rule in European and American Conflicts Law, in P. Hay and M. Hoeflich (eds.), Property Law and Legal Education–Essays in Honor of John E. Cribbet 109, 118–120 (1988); Symeonides, A New Conflicts Restatement: Why Not? 5 J.Priv. Int’l L. ___ (forthcoming 2009).
- Restatement, Second, Conflict of Laws §§ 113–14 (1971). See also Restatement, Judgments § 42 (1942); Restatement, Second, Judgments § 15 (1982); Ginsburg, Judgments in Search of Full Faith and Credit: The Last-in-Time Rule for Conflicting Judgments, 82 Harv. L. Rev. 798 (1969).
- R.H. Graveson, Conflict of Laws 632 (7th ed.1974). See generally Carter, Rejection of Foreign Law: Some Private International Law Inhibitions, 55 Brit. Ybk. Int’l L. 1984, 111 (1985).
- J.–G. Castel, Canadian Conflict of Laws 412 (1st ed. 1975) (citing Russel v. Smyth, (1842) 9 M. & W. 810, 819; Williams v. Jones, (1845) 13 M. & W. 628, 633). See also Castel & Walker, Canadian Conflict of Laws § 14.23 et seq. (6th ed. 2005); Fairley, Open Season: Recognition and Enforcement of Foreign Judgments in Canada After Beals v. Saldanha, 11 ILSA J. Int’l & Comp. L. 305 (2005).
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Chapter 17. Torts 224 results (showing 5 best matches)
- Part II of this chapter, as well as Chapter 2, described the evolution of American conflicts law from the rigid territorial system of the First Restatement, to the choice-of-law revolution, to the new approaches that followed. This Part attempts a synthesis of these approaches, and then explores whether the current state of the case law has produced, or is capable of producing, new choice-of-law rules for tort conflicts.
- Indeed, a common-domicile rule encounters no criticism when applied to cases of the pattern which, after all, exemplifies the classic false conflict paradigm. The application of the law of the common domicile in these cases is universally acknowledged—even by skeptics—as the American conflicts revolution’s “only unqualified success” pattern. In these cases, the fact that the law of the state of injury favors recovery arguably generates a certain interest on the part of that state in deterring wrongful conduct within its territory and, secondarily, in ensuring recovery of medical costs resulting from the tort. These interests do not necessarily trump, but do rival to some extent, the interests of the common-domicile state in insisting on its loss-allocation balance struck by its less generous law. Thus, the very presence of an interest, even a weak one, on the part of the injury-state prevents the easy classification of these conflicts into the classic false conflict paradigm. When...
- For situations in which both states have identifiable legitimate interests, thus presenting an “apparent conflict,” Currie called for the reconsideration and “a more moderate and restrained interpretation of the policy or interests of one state or the other.” This would avoid the conflict, that is, again lead to a “false conflict.” Thus, Currie’s use of the “false conflict” terminology appears broader than when employed by others because it extends to cases that the court deems avoidable after a reconsideration of the policies of the involved states. If, upon reconsideration, “the conflict between the legitimate interests of the two states is unavoidable,” forum law is to be applied. Notwithstanding this process of considering the “social, economic, and administrative” policies of the states involved, Currie stated that, in no instance is the court to “weigh” the competing interests in “true” or “unavoidable” conflict situations.
- Chapter 2 surveyed the fundamental changes in theoretical approaches to choice of law that emerged during the second half of the Part I of this chapter presents these approaches in operation. Part II seeks to ascertain the extent to which, regardless of the approach the courts follow, the solutions they reach in recurring patterns of cases are sufficiently uniform to be susceptible of being recast into choice-of-law rules. Part III discusses some special but diverse categories of tort conflicts involving injury to intangible values and statutory liability. Finally, part IV focuses on products liability conflicts which, while being a species of tort conflicts, are nevertheless sufficiently distinct to require separate discussion.
- One of the few uncontested gains of the American conflicts revolution in the arena of tort conflicts has been the increasing acceptance of the parties’ domicile as the focal point around which to resolve, or at least debate, the conflicts between loss-distribution rules. At least when both the tortfeasor and the injured party are domiciled in the same state and are involved in a tort occurring in another state (hereafter “common-domicile” cases), opinions tend to converge on the proposition that the state of the common domicile has a better claim to apply its law than the state of conduct and/or injury. the vast majority (33 out of 42) of cases in which a court of last resort decided to abandon the rule involved such loss-distribution common-domicile conflicts. of these cases applied the law of
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Chapter 10. Special Jurisdictional Problems 224 results (showing 5 best matches)
- Although not itself jurisdictional, the choice-of-law question under the FSIA is closely intertwined. Because the FSIA does not itself contain any liability-creating rules, courts that proceed beyond the immunity question must confront the question of which law to apply. Courts are divided as to how to approach the conflicts question with some following the rule and thus applying the choice-of-law methodology of the state in which they sit, and others applying an independent, federal choice-of-law approach. In practice, the difference in approach may not be significant, because the courts applying an independent approach have borrowed from the Second Conflicts Restatement, an approach like that of most state courts. rule has little claim to application in an area of the law in which the need for uniformity is strong. the power to apply an independent approach to conflicts questions under the FSIA, especially if the state conflicts approach could lead to application of an unusual...
- Restatement, Second, Conflict of Laws § 24 (1971). For the suggestion that fairness and convenience, rather than relational factors, should be the principal considerations in assessing the constitutionality of the exercise of jurisdiction see Weintraub, An Objective Basis for Rejecting Transient Jurisdiction, 22 Rutgers L.J. 611, 616 (1991). For a critical view of the suggestion see Hay, Flexibility Versus Predictability and Uniformity in Choice of Law, Hague Academy of International Law, 226 Recueil des Cours 281 (1991–I).
- Restatement, Second, Conflict of Laws § 40 (1971).
- See Restatement, Second, Conflict of Laws § 32 (1971); see supra § 8.13.
- Restatement, Second, Conflict of Laws § 40, cmnt. (b) (1971).
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Chapter 18. Contracts 218 results (showing 5 best matches)
- The particular facts of some of these cases, coupled with the quality of their reasoning, suggest that they are of limited persuasive value, at least as compared to the more numerous cases that reached the opposite result. Nevertheless, the cases illustrate or at least suggest that statute-of-limitations conflicts are sui generis conflicts that do not easily fit within the existing formulae for conflicts resolution. For example, the traditional procedural characterization of statutes of limitation, even if ill-conceived, necessarily excludes them from the scope of a choice-of-law clause in the same way it exempts them from the scope of the judicial choice-of-law process in general. While this exclusion may unduly restrict party autonomy, the opposite solution of characterizing these statutes as substantive has its own problems as well. A substantive characterization means that a choice-of-law clause may encompass statutes of limitation provided the clause uses explicit language to...of
- The principle of party autonomy is “almost as ancient as conflicts law itself.” Indeed, it seems that party autonomy was recognized, albeit indirectly, by what may be regarded as the earliest known conflicts rule. A decree issued in Hellenistic Egypt in 120–118 B.C. provided that contracts written in the Egyptian language were subject to the jurisdiction of the Egyptian courts, which applied Egyptian law, whereas contracts written in Greek were subject to the jurisdiction of the Greek courts, which applied Greek law. Thus, by choosing the language of their contract, parties could directly choose the forum and indirectly the applicable law. which has since been a gravamen of continental conflicts doctrine and practice.
- Like most legal systems, the Second Restatement as well as American case law take the position that, in the absence of demonstrated contrary intention, the parties’ choice encompass only the internal or substantive law of the chosen state, and not its conflicts law. This is a perfectly logical position because it avoids the complexities and uncertainty of renvoi and thus preserves the attractiveness of choice-of-law clauses. Precisely in order to reduce the uncertainty, many choice-of-law clauses expressly exempt from their scope the conflicts law of the chosen state. However, this seems to be one of the few lessons that drafters of choice-of-law clauses have learned well. A review of the cases reveals countless clauses that are very vague and poorly drafted in many other respects.
- As the above discussion indicates, European conflicts law (as well as the Inter–American Convention) distinguishes between rules of law and potentially applicable rules of law that violate mandatory rules,” which it defines as those rules “the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract.”of law, and they may not be evaded by the contractual choice of another law. The latter are mandatory in the international or conflicts sense, and they may be evaded by neither a contractual choice of law nor a judicial choice of law. another difference is that the two sets of rules may belong to different countries. The “simple” mandatory rules that can defeat a contractual choice of law are those of the ...of the country in which “all other...
- Party autonomy under subsection (a) of § 1–301 is subject to multiple exceptions spelled out in subsection (c) of the same section. Subsection (c) lists several other sections of the U.C.C. and provides that, if any of those sections designates the state of the applicable law, that law governs and “a contrary agreement is effective only to the extent permitted by the law so specified.” In the old section 1–105, this reference was to the whole law of that state, including its conflicts law. The current text of § 1–301 limits this reference to the substantive law of the designated state.
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Chapter 17. Torts Part 6 262 results (showing 5 best matches)
- For comprehensive discussion, see A.A. Ehrenzweig, Private International Law 196 et seq. (1967); R. Force & M. Norris, The Law of Maritime Personal Injury § 9:3 (5th ed. 2004); T. Schoenbaum, Admiralty and Maritime Law (4th ed.2004); Force, Choice of Law in Admiralty Cases: “National Interests” and the Admiralty Clause, 75 Tul. L. Rev. 1421 (2001); Smith, Choice of Law Analysis: the Solution to the Admiralty Jurisdictional Dilemma, 14 Tul. Mar. L.J. 1 (1989); Symeonides, Maritime Conflicts of Law From the Perspective of Modern Choice of Law Methodology, 7 Maritime Lawyer 223 (1982); Symeonides, Cruising in American Waters: , Maritime Conflicts, and Choice of Law, 37 J. Mar. L. Comm. 491 (2006); Symposium, Choice of Law and Admiralty, 7 Maritime Lawyer No. 2 (1982); Weintraub, Admiralty Choice-of-Law Rules for Damages, 28 J.Mar. L. & Com. 237 (1997).
- See Restatement, Second, Conflict of Laws § 183, cmnt. c (1971). A person declared immune from tort liability to an injured employee by an applicable workers’ compensation statute may nevertheless be liable for contribution or indemnity to a third person against whom a judgment in tort has been obtained. Whether he will be held liable is determined by the law selected by application of the rule of § 173. See Restatement, Second, Conflict of Laws § 184 cmt. c (1971).
- In Price v. Litton Systems, Inc., 784 F.2d 600 (5th Cir.1986), the Fifth Circuit upheld the district court’s application of Alabama’s pro-defendant law to products liability claims rising out of the crash of a helicopter in Alabama during a training mission from a base in Alabama. The allegedly defective equipment was designed in California and manufactured in Virginia by companies with their principal places of business in New York and Delaware. Texas and Iowa were the permanent domiciles of the two decedents involved. In applying Mississippi’s Second Restatement “most significant relationship” test, the court found that the place of injury was a significant factor because it was not merely fortuitous that the helicopter crashed in Alabama since the flight was not scheduled to travel beyond the borders of that state. The court noted that, in addition to being the place of injury, Alabama, while not the permanent domicile of the decedents, was their place of residence at the time
- For an explanation of the rationale of this article by its drafter, including the reasons for using a unilateralist technique, see Symeonides, Louisiana’s New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 Tul. L. Rev. 677, 749–59 (1992). For a critique, see Kozyris, Values and Methods in Choice of Law For Products Liability: A Comparative Comment on Statutory Solutions, 38 Am. J. Comp. L. 475 (1990); Weintraub, The Contributions of Symeonides and Kozyris to Making Choice of Law Predictable and Just: An Appreciation and Critique, 38 Am. J. Comp. L. 511 (1990). For cases applying this article, see Symeonides, Louisiana Conflicts Law: Two “Surprises,” 54 La. L. Rev. 497 (1994). An almost identical rule is found in Article 48 of the Puerto Rican Draft Code. For discussion of that rule by its drafter, see Symeonides, Problems and Dilemmas in Codifying Choice of Law for Torts: The Louisiana Experience in Comparative Perspective, 38 Am. J. Comp. L. 431 (1990). For a critique,...
- This statement is limited to tort conflicts. In contracts conflicts, the principle of territoriality lost more ground than in tort conflicts, when courts abandoned the rule and began choosing the applicable law on the basis of multiple factors, many of which are non-territorial. Territoriality’s biggest loss came with the wider recognition and expansive utilization of the principle of party autonomy. This principle is non-territorial in a dual sense: (a) it focuses on the individual parties and makes their volition the supreme principle; and (b) it allows the parties to choose the governing law—including an a-national, non-territorial law—independently from territorial connections. The extension of party autonomy to areas beyond contracts, such as successions and matrimonial property, is also another dramatic example of the retreat of territoriality. See S. Symeonides, Private International Law at the End of the 20th Century: Progress or Regress?, 38–40, 48, 56–60 (1999). A less...
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Chapter 17. Torts Part 5 319 results (showing 5 best matches)
- See Art. 3(3) of Act of 11 April 2001 Regarding Conflict of Laws on Torts (law of the parties’ common habitual residence or common seat displaces law of the place of conduct or injury).
- See Act Regarding the Conflict of Laws on Torts of 11 April 2001, Staatsblad 2001, 190, art. 8 (the Act’s other choice-of-law articles “shall not prevent the taking into account of traffic and other safety regulations, and other comparable regulations for the protection of persons or property in force at the place of the tort.”).
- Art. 6 of Act of 11 April 2001Regarding Conflict of Laws on Torts, Staatsblad 2001, 190, effective 1 June 2001 (“Where the parties have chosen the law applicable to any matter relating to tort, … that law shall apply between them …”).
- Rule 2a, see Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993) (discussed supra § 17.32); Feldman v. Acapulco Princess Hotel, 137 Misc.2d 878, 520 N.Y.S.2d 477 (Sup. Ct. 1987) (personal injury action arising from a swimming pool accident at a Mexican resort hotel involving a New York plaintiff and a Mexican defendant, the owner of the hotel. Mexican law limited the amount of damages while New York law did not. The court applied Mexican law under Rule 2a); Barkanic v. General Admin. of Civil Aviation of the People’s Republic of China, 923 F.2d 957 (2d Cir.1991) (decided under New York conflicts law; the court applied Chinese law to an action by the survivors of two American citizens who were killed in the crash in China of an airplane operated by defendant, an agency of the Chinese government. Unlike the law of the victims’ domiciles, Chinese law drastically limited the amount of damages. Noting that Rule 2a is “phrased in non-discretionary terms,...of
- See Act of 11 April 2001 Regarding Conflict of Laws on Torts, Art. 5, Staatsblad 2001, 190, effective 1 June 2001 (when the tort “is closely connected with an existing legal relationship” the law that governs that relationship displaces the otherwise applicable law).
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Chapter 16. Legitimation and Adoption 93 results (showing 5 best matches)
- Restatement, Second, Conflict of Laws § 287, cmnt. (f). Pfeifer v. Wright, 41 F.2d 464 (10th Cir. 1930), cert. denied 282 U.S. 896, 51 S.Ct. 181, 75 L.Ed. 789 (1931) (acknowledgement that a child is an heir will not necessarily constitute acknowledgement of legitimacy); 1 Rabel, Conflict of Laws 630 (2d ed. 1958); Stumberg, Conflict of Laws 333 (3d ed. 1963). Cf. Colpitt v. Cheatham, 267 P.2d 1003 (Okla. 1954). For a far-reaching result see In re Bassi’s Estate, 234 Cal.App.2d 529, 44 Cal.Rptr. 541 (1965) (discussed infra § 16.2).
- A number of foreign conflicts codifications or draft proposals now uniformly refer to the law of the child to determine its rights as against the parent(s). The 1997 German statute reforming the “law with respect to children” also replaced the relevant provisions of the Conflicts Statute. It drops all references to legitimacy and illegitimacy: paternity and the relationship between the child and each parent are governed by the law of the child’s habitual residence, the unwed mother’s claims against the father on account of the pregnancy are governed by the law of her habitual residence. Arts. 19, 21 EGBGB (Introductory Law to the Civil Code), as amended (1997).
- Cf. Restatement, Second, Conflict of Laws § 288, cmnt. (d) (1971). However, a number of decisions have interpreted references to “child,” “heir,” “issue” and the like in wills and trusts as including only legitimate children. H. Clark, The Law of Domestic Relations in the United States (2d ed. 1988). For criticism see Krause, Illegitimacy: Law and Social Policy 94 (1971).
- Matter of Estate of Chase, 127 A.D.2d 415, 515 N.Y.S.2d 348 (1987); In re Estate of Wagner, 50 Wash.App. 162, 748 P.2d 639 (1987); Restatement, Second, Conflict of Laws § 290, cmnt. (b). For exceptions see supra § 16.6 n.2.
- Adoption was unknown to the common law although well developed in Roman law and in other legal systems. In the United States, adoption is accomplished by judicial or governmental proceeding; it is the process which creates the relation of parent and child between persons who are strangers in blood. The conflict-of-laws issues involved relate, first, to the particular court’s jurisdiction to grant an adoption and, second, to the effects (incidents) of the adoption in another forum. Choice-of-law issues are not involved in the adoption itself as the court applies the law of the forum.
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Chapter 3. Determining the Applicable Law Part 4 170 results (showing 5 best matches)
- For suggestions of how to modernize the test, see Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166 (3d Cir.1995); Symeonides, Maritime Conflicts of Law from the Perspective of Modern Choice of Law Methodology, 7 Marit. Lawyer 223 (1982).
- In the conflicts literature, a true conflict is present whenever each involved state has an interest in applying its law, and that law produces a different outcome. See supra § 2.9.
- 448 F.Supp. 1079 (D.Kan.1978), rev’d 611 F.2d 790 (10th Cir.1979) (critically noted by Grossman, Statutes of Limitations and the Conflict of Laws: Modern Analysis, 1980 Ariz. St. L.J. 1, 56–64 (1980); Martin, Statutes of Limitations and Rationality in the Conflict of Laws, 19 Washburn L.J. 405 (1980)).
- also found that the quoted phrase referred to the “whole law” of the conduct state, including its conflicts law, rather than its internal law.
- From the rich literature on these subjects, see, inter alia, Born, A Reappraisal of the Extraterritorial Reach of U.S. Law, 24 Law & Pol’y Int’l Bus. 1(1992); Bradley, Territorial Intellectual Property Rights in an Age of Globalism, 37 Va. J. Int’l L. 505 (1997); Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85 (1998); Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101 (1998); Gordon, United States Extraterritorial Subject Matter Jurisdiction in Securities Fraud Litigation, 10 Fla. J. Int’l L. 487 (1996); Kramer, Extraterritorial Application of American Law after the Insurance Antitrust Case: A Reply to Professors Lowenfeld and Trimble, 89 Am. J. Int’l L. 750 (1995); Lowenfeld, Conflict, Balancing of Interests, and the Exercise of Jurisdiction to Prescribe: Reflections on the Insurance Antitrust Case, 89 Am. J. Int’l. L. 42 (1995); Turley, “When in Rome”: Multinational...
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Chapter 24. Recognition and Enforcement of Foreign Judgments and Decrees 170 results (showing 5 best matches)
- met with vigorous dissent by four members of the Court, and it would seem that the criticism was well founded. It may be granted that the methods of enforcement of foreign judgments in civil law countries differ from our own. So do many other rules of law, both in the conflict of laws and in other areas. But a court normally does not make its own rule dependent upon what the doctrine of a foreign state on a point may be nor varies its own rule according to the foreign conflict-of-laws rule. The effect of lack of reciprocity seems a political rather than a legal question. : “The application of the doctrine of res judicata does not rest in discretion; and it is for the government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary.”
- Neither Congress nor the federal courts may be expected to federalize conflicts law in general. However, with respect to international conflicts law, isolated decisions have established uniform rules and, following the example of foreign countries, the federal government has considered the conclusion of bilateral treaties for the reciprocal recognition of judgments. Such treaties would overcome the obstacles to the recognition of U.S. judgments abroad which were noted above and, in the case of the European Community, would neutralize the potentially adverse effects of intra-EU jurisdiction and recognition of judgments law.
- Decisions, decrees and awards often result from proceedings which are not “judicial” or, at least, not adversary in nature. The former encompass administrative determinations and arbitral awards. The latter are the “extralitigious” proceedings primarily known to civil-law jurisdictions. They include determinations, in a judicial but often nonadversary proceeding, of such matters as child custody, declarations of death, incompetence, and emancipation, and probate and bankruptcy decrees. In the United States, these subject matters will ordinarily arise in judicial proceedings much like any other Misunderstanding of substantive-law issues—for instance, of the legal rights and position of the heirs versus the executor or administrator in succession matters in the civil and common law, respectively —may often be the real reason for non-recognition in the international setting. This suggests that these problems should not be regarded as ordinary conflict-of-laws problems such as arise in...
- Similarly, the Second Conflicts Restatement states that “the local law of the State where the judgment was rendered determines, subject to constitutional limitations, whether, and to what extent the judgment is conclusive as to the issues involved in a later suit between the parties, or their privies, upon a different claim or cause of action.” Another, not necessarily inconsistent, view suggests that the recognizing (second) forum may apply its own rules to determine the effect of a sister-state judgment, among other reasons by urging use of the flexible standards of choice-of-law evident in such cases as Babcock v. Jackson, by pointing to § 103 of the Second Restatement, and by considering rules of res judicata and estoppel to be rules of law (not entitled to full faith and credit) rather than part of the judgment. It would seem that the last point—res judicata as a rule of law and not part of the judgment—confuses the flexibility in choice of law, which results from the... ...of...of
- Contract claims. The difficult provision of prior law (Art. 5(1)) for specific jurisdiction for contracts (place of performance of the characteristic obligation, with place of performance to be determined by the applicable conflicts law) has been simplified for two types of contracts. For sales and service contracts, the applicable law (as that of the “closest connection”) is the law of the place of actual (or stipulated) delivery of goods or of rendition of services. For all other contracts, the previous rules continue to apply. The two changes do provide clear guidance. However, the problem is that a vendee’s place of business will now often have jurisdiction under these rules, while, substantively, it may be the vendor’s law that might be applicable under the Vienna Convention on the International Sale of Goods This falling apart of jurisdiction and applicable law may create some difficulties of practical application in cases involving a non-Community party whose national law may...
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Chapter 5. Basic Considerations in Personal Jurisdiction 253 results (showing 5 best matches)
- F. Juenger, Choice of Law and Multistate Justice 29–30 (1993) (discussing Story, Commentaries on the Conflict of Laws (1st ed. 1834)).
- See, e.g., Restatement, Second, Conflict of Laws § 96 (1971) (Full Faith and Credit Clause does not allow an attack on a judgment on grounds that would not be allowed under the local law of the court rendering the judgment).
- See, e.g., Restatement, Second, Conflict of Laws § 30, cmnt. b (“When the question has arisen, the courts have usually held themselves without authority under their local law to exercise jurisdiction on bases not recognized by the common law unless authorized to do so by statute.”).
- In this chapter, and the six that follow, we examine the law of personal jurisdiction. We cannot, of course, give a treatment as But Conflicts is a tri-partite discipline, and one of those parts is jurisdiction. Thus our aim is to examine personal jurisdiction both of itself and how it relates to the discipline’s other major topics: choice of law and judgment recognition.
- Restatement, Second, Conflict of Laws §§ 69–79 (1971). See also infra § 15.4 for a discussion of divorce jurisdiction.
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Table of Contents 205 results (showing 5 best matches)
- Definitions—Conflict of Laws—Private International Law
- Introduction—The Use of the Domicile Concept in Conflict of Laws
- Marriage and Other Forms of Domestic Relationships as a Problem in the Conflict of Laws
- D. Matrimonial Property as Conflict of Laws Issues
- Conflicts Law Reform in Other Countries
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Chapter 11. Limitations on Jurisdiction 199 results (showing 5 best matches)
- the choice-of-law issues in a case are important factors in the application of Under the common law doctrine, the dismissal and trial in another forum may result in a different law being applied by the alternative forum. Under § 1404(a), however, the Supreme Court has ruled that the transferee court must apply the same law that the transferor court would apply. This results because the purpose of § 1404(a) was generally intended “on the basis of convenience and fairness, simply to authorize a change of courtrooms.” Observe that under this approach, a trial court trying cases transferred for consolidation of trial in complex litigation, such as that resulting from an air crash, may be trying the case as to some parties under one law, and as to other parties under another law. If this relates to measure of damages, or limitation on damages, the possibility exists of different recovery by different parties otherwise similarly situated in the same lawsuit. This may present a strong...
- 22 U.S.C.A. § 2370(e)(2). See Hill, Sovereign Immunity and the Act of State Doctrine, 46 Rabels Zeitschrift 118 (1982). See also Herzog, La théorie l’Act of State dans le droit des Etats–Unis, 1982 Revue critique de droit international privé 617; Herzog, Conflict of Laws—1984 Survey of New York Law, 36 Syracuse L. Rev. 119, 165–66 (1985).
- Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
- Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). See also Currie, Change of Venue and the Conflict of Laws, 22 U. Chi. L. Rev. 405 (1955); Kaufman, Further Observations on Transfers Under Section 1404(a), 56 Colum. L. Rev. 1 (1956); Litman, Considerations of Choice of Law in the Doctrine of Forum Non Conveniens, 74 Calif. L. Rev. 565 (1986) (explaining California law).
- See Restatement, Second, Conflict of Laws § 85 (1971).
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Preface to the Fifth Edition 5 results
- The conflict-of-laws river continues to flow swiftly. Since the publication of the last edition there have been important developments in the United States, including Supreme Court decisions, as well as internationally, including the promulgation of several new regulations in the European Union.
- We dedicate this edition to Professor Eugene F. Scoles. His last edition of
- In preparing this edition we have been mindful of the aspects of the book that most readers have found helpful. We have continued to emphasize both interstate and international aspects of the conflict of laws. We have also (we hope) maintained the book’s evenhanded character. Particularly in the area of choice of law, the field has taken on a remarkable pluralism of theories. We have attempted to cull those theories and to take from each its valuable insights. Some areas have seen both a theoretical and practical convergence, leading to more predictability and stability. Aware that busy jurists and lawyers who do not specialize in the discipline are anxious for guidance where it can be given, we have endeavored to identify such areas of convergence.
- As is inevitably the case with any project this massive, we are indebted to many persons and institutions. In particular, we are grateful for the support that we have received at the various institutions with which we have been affiliated during the preparation of this and previous editions: Albany Law School of Union University, Creighton University School of Law, Emory University School of Law, University of Illinois College of Law, Louisiana State University Law Center, University of Oregon School of Law, Technische Universitat Dresden, and Willamette University College of Law. We are also grateful to our families, who showed remarkable patience during the seemingly endless period that this was a work in progress.
- Each of us has had the support of his institution and of colleagues and student assistants. Peter Hay wishes to thank, in particular, his Emory colleague Rich Freer, his principal assistant Matthew J. Blumenstyk, as well as Thomas Cooper, Alexandra Ragan, and Chelsey Tulis at Emory, and, in Europe, Dr. Tobias Kr¨atzschmar of Munich, Germany. Patrick Borchers wishes to thank his faculty colleagues at Creighton Law School. Symeon Symeonides wishes to thank his colleagues at Willamette for allowing him to be able to fulfill the obligations of an author while deaning, and the Hague Academy of International Law for its permission to generously draw from his book
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Chapter 18. Contracts Part 2 60 results (showing 5 best matches)
- Much of the above suggests, implicitly, that the proper identification of the kind of unjust enrichment claim (“shift of assets”) involved will lead to the identification of the appropriate single law for its resolution of the conflict-of-laws. This may, but need not, be true. Thus it may be open to question whether a single law should govern the quasi-contractual claims of both parties with respect to their respective performances, which may be localized quite differently, and secondly, how the problem of differing standards for compensation should be resolved (e.g. as part of the quasi-contractual claim or by the lex fori as part of “procedure” rather than substance).
- . In addition to payment by check or credit card, electronic funds transfers are increasingly common. Some point-of-sale transactions and consumer payments are governed by the federal Electronic Fund Transfer Act, otherwise by the new Article 4A of the Uniform Commercial Code. Its § 4A–407 designates the law of the receiving bank’s location as the applicable law for the rights and obligations between render and bank and the location of the beneficiary bank as between it and the beneficiary as well as for the issue when payment is make by means of a funds transfer by the originator. A device of the applicable law by the parties is expressly permitted, and there is no requirement that the law selected bear a reasonable relationship to the funds transfer. § 4A–507 (b). Subsection c is of great importance and wide applicability: it permits, again without a requirement of a reasonable relationship, a selection of the applicable law by and for the funds transfer ...a potential conflict...
- The Second Restatement rule, however, is more complex than it first appears. The Comment generalizes it to relationships beyond contract, excludes the foreign conflicts law from its reference (and with it the possibility of ), and in contract cases would honor the parties’ choice of law as contained in the main contract. Some of these aspects require separate consideration. As a starting point however, the basic rule should be reviewed which essentially defines the as the law of the underlying (contractual) relationship in cases growing out of contracts.
- or, for that matter, when the reverse is true, for instance in common law-civil law conflict cases involving equitable remedies. In such cases, the foreign forum need not, indeed cannot, while an American forum is put to the choice of restricting the relief to that available under the foreign
- the plaintiff was licensed as a broker in the forum state (Washington) as well as in Oregon and Idaho. The defendant seller was an Idaho resident and the land was located both in Idaho and in British Columbia, Canada. Negotiations with a potential buyer were held in Idaho, a sales agreement was prepared by an Idaho attorney, and the escrow money was to be held in that state. The defendant denied liability for the brokerage commission with respect to the property in British Columbia because the plaintiff was not licensed there and local law bars unlicensed brokers from collecting commissions. The Washington court considered Idaho to be the state with the “most significant relationship” to the transaction and, applying Idaho law, allowed the recovery. The decision is, of course, but weak precedent for the Second Restatement, rule, since most other approaches—except that of the First Restatement—would have reached the same result. Since the British Columbia rule serves to protect...
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Chapter 6. General Jurisdiction 119 results (showing 5 best matches)
- See, e.g., M. Reimann, Conflict of Laws in Western Europe: A Guide Through the Jungle 75 (1995) (“As a basic rule in Europe, the courts in the defendant’s home state … have general jurisdiction …”); Smit, Common and Civil Law Rules of In Personam Adjudicatory Authority: An Analysis of the Underlying Policies, 21 Int’l & Comp. L.Q. 335, 347 (1972).
- See generally M. Reimann, Conflict of Laws in Western Europe: A Guide Through the Jungle 75–77 (1995); Hay, supra n.4, at 311–15.
- J. Story, A Treatise on the Conflict of Laws § 539 (1834).
- A. Ehrenzweig, A Treatise on the Conflict of Laws § 71 (1962).
- See Restatement, Second, Conflict of Laws § 31, cmnt. b (1971).
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Index 390 results (showing 5 best matches)
Title Page 4 results
Chapter 15. Dissolution of Domestic Relationships and Its Consequences 137 results (showing 5 best matches)
- Foreign legal systems, where statutory rules on jurisdiction and choice of law are only exceptionally subject to further constitutional scrutiny, clearly focus on the interests of the local (plaintiff) obligee in support matters and are therefore less concerned with forum shopping. European Union law, provides for jurisdiction based on the plaintiff’s connection to the forum, German law retains asset-based jurisdiction as against non-EU (“Brussels I”) defendants, and German conflicts rules invokes German substantive law, as subsidiary law, when the otherwise applicable law contains no provision for support in favor of the local plaintiff-obligee. European Union law will provide for jurisdiction based on the creditor’s residence (Art. 3(b)), on maintenance claims ancillary to status (e.g., divorce) or custody cases over which it has jurisdiction “according to its own law” (for instance, in a case involving a non-EU defendant to whom the Brussels–II Regulation does not apply): Art. 3(c...
- Most American courts have applied the substantive law of the forum in divorce actions because of the historical assumption that the forum was acting as the state of the matrimonial domicile of the parties. The courts have continued to apply local law regardless of whether the marriage was originally celebrated in the forum, whether the forum was or now is the matrimonial domicile of the parties (where they last lived together as husband and wife), and whether the marital offense or the breakdown of the marriage had occurred there or elsewhere. With this identity of forum and applicable law, the principal conflicts issues involved the granting and recognition of interstate divorces are thus relate to the divorcing court’s jurisdiction. The application of local substantive law also means that the assertion of jurisdiction should therefore be based on an especially close nexus of the forum to the parties and their relationship.
- The consequences of annulment, as in divorce, may also be determined by a law other than the law governing the annulment. In the simple case of an annulment in the state of celebration of the marriage and domicile of the parties, the law of the forum will govern all issues. On the other hand, if annulment is sought at the domicile of one of the parties, concepts akin to that of “divisible divorce” may apply in order to protect an absent spouse in his or her property rights under the law of the state of celebration or another applicable law. The necessity for such splitting of the choice-of-law reference or of the status decision and the adjudication of the incidents of the status is readily apparent in those cases where an applicable law makes provisions for post-annulment support, when a property settlement must be made, or when custody of children is determined.
- The rule may appropriately be different if an annulment is sought for defects other than those recognized by the law of celebration. Thus, a marriage may presumably be annulled according to the law of the parties’ domicile even if valid under the law of the state of celebration, for instance when the marriage was celebrated there in evasion of the domiciliary law. An example is the Uniform Marriage Evasion Act, which, although withdrawn by the Commissioners on Uniform State Laws, continues to be in force in a few states. A different choice of law may also be indicated when the annulment is not sought by one of the parties to the marriage but by a third party—a parent, a child, or an heir—all of which may make considerations relevant which are additional to, or different from, those under the law of celebration. The Second Restatement recognizes these special cases, involving a strong interest or policy of a state other than the state of celebration, when it advocates a reference to...
- The full-faith-and-credit requirement of United States domestic law does not apply to foreign-country decrees. Moreover, foreign legal systems, especially those of the civil law orbit, may not base jurisdiction for divorce on notions of domicile.
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Chapter 7. Specific Jurisdiction in Tort Cases 102 results (showing 5 best matches)
- Restatement, Second, Conflict of Laws § 87 (1971).
- , was a case involving an allegedly libelous publication in a periodical of national circulation. Unlike involved the question of whether the publisher itself could be subjected to jurisdiction. Also unlike plaintiff brought her case in New Hampshire, which was neither her domicile, nor was it a state with an overly large circulation of the publication. Moreover, the plaintiff’s choice of New Hampshire was an obvious instance of forum shopping, as it had been chosen for its long statute of limitations, which made it the only state that would have entertained the case. None of these concerns was sufficient to defeat jurisdiction, however. The Court adjudged the lack of the As to the forum-shopping concerns, the Court ruled that this was a problem of choice of law to be resolved—if at all—by New Hampshire’s conflicts doctrine.
- The vitality and parameters of the local action rule are in some considerable doubt. Some courts take the position that the local action rule is jurisdictional, while others treat it as only a matter of venue, and that a judgment entered in violation of the rule is thus not vulnerable to collateral attack. More fundamental is the question of the types of actions to which the rule extends. Not every lawsuit with any connection to realty necessarily falls within the ambit of the rule. The Second Conflicts Restatement takes the position (in opposition to While such cases are rare, the Second Restatement’s position seems to accord with the trend of recent authority, and would have the sensible effect of limiting the local action rule to disputes about the title of realty. Thus, jurisdiction in disputes regarding injuries to real property exists in the state that is the situs of the realty, and other states with which the defendant has a purposeful, related connection.
- The expansion of the jurisdiction of American courts has occurred, in large part, in tort cases. A plurality of the United States Supreme Court jurisdictional cases since has involved a tort of some kind. In retrospect, this is an unsurprising development. Probably no area of substantive law has seen as much change over the last 50 years as has the law of torts. The double effect of expanding boundaries of tort liability
- Fraud, misrepresentation, deceit and similar causes of action are fairly frequent subjects of commercial litigation. As is the case for interference with contract and like torts discussed in the last section, no Supreme Court authority bears directly on the jurisdictional calculus for the fraud family of torts. As mentioned in the last section, the Supreme Court’s intentional tort and contract cases provide a reasonably For the fraud family of torts, however, perhaps the closest Supreme Court analogy is , the Supreme Court held that a Virginia court could assert jurisdiction over an out-of-state company selling securities to Virginia citizens, for the purpose of requiring the company to comply with the state’s “blue sky” law. As the Court noted, one of the purposes behind the law is to prevent fraud upon purchasers, and the direct and purposeful efforts of the company to take advantage of the local market created sufficient ties with the state to allow it to assert its...
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Chapter 9. Specific Jurisdiction in Statutory Cases 85 results (showing 5 best matches)
- The employer-employee relationship in the United States is defined and modified by a large number of statutory obligations. Prominent among them are workers’ compensation, unemployment insurance and anti-discrimination laws. While the details and purposes of these laws vary considerably among themselves and from state to state, certain common features appear with regard to jurisdictional questions.
- Both state and federal governments have enacted a wide variety of statutes and administrative rules to protect purchasers of securities and other kinds of investments. The most important of these federal statutes are the so-called ’33 and ’34 acts, which—in the broadest terms—require certain disclosures of information and prevent fraud and certain misrepresentations in connection with the sale of securities. There are other important federal statutes such as the Commodities Exchange Act. Many states have so-called “Blue Sky” laws that impose parallel obligations under state law.
- The question of personal jurisdiction over cross-border polluters is one of growing practical importance. There is a growing and impressive body of federal environmental laws, including the National Environmental Protection Act (“NEPA”), various incarnations of the Clean Air and Clean Water Acts, along with an astonishing variety of state environmental laws and regulations. In many cases these statutes impose private liability, and for out-of-state defendants the question of in personam jurisdiction can be critical.
- , Idaho state officials attempted—under Idaho state law—to block a takeover of an Idaho company by a Texas corporation. Alleging that enforcement of the Idaho state law would be unconstitutional, the Texas company brought suit in a Texas federal court, naming the Idaho officials as defendants. While noting that normally personal jurisdiction must be decided before that of venue, the Supreme Court reversed the usual order, disposing of the case on venue grounds by holding that the general federal venue statute would not permit the action to proceed in the Texas federal court. Part of the Supreme Court’s desire to avoid the question of personal jurisdiction stemmed from the majority’s belief that the attempted assertion of jurisdiction in
- prompted an important amendment to the federal rules of civil procedure, which is considered in detail elsewhere. That provision, Federal Rule of Civil Procedure 4(k)(2), states that defendants who—like the British parties in —would not be subject to personal jurisdiction in any state may be haled into court on federal law theories as long as the exercise of jurisdiction comports with the Fifth Amendment. The drafters of this rule apparently believed that jurisdiction in such cases would be available as long as the defendant has minimum contacts with the United States as a whole, although the viability of the so-called “national contacts” approach remains undecided by the Supreme Court, makes clear that in areas, like securities law, that are dominated by federal statutes, it is important to be conscious of the possibility of federal legislation altering the usual reference to state long-arm statutes.
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Chapter 8. Specific Jurisdiction in Contract Cases 63 results (showing 5 best matches)
- Looking at these factors, the Court concluded that the franchisees were properly haled before the Florida court. First, their affiliation with Florida was purposeful. Although the franchisees had only limited physical contacts with Florida, they “deliberately ‘reached out beyond’ Michigan and negotiated with a Florida corporation for the purchase of a franchise and the manifold benefits that would derive from affiliation with a nationwide corporation.” Thus, the failure to make the scheduled payments and continued use of the trademarks after the termination of the franchise foreseeably caused injury to the franchisor. Second, the actual course of dealing between the parties was, according to the Court, more than sufficient to put the franchisee on notice that the corporation’s home was in Florida. Although some of the dealings were with the Michigan office, major problems had consistently required the intervention of the Florida headquarters, and the contractual documents themselves...
- Applying the purposefulness test, the Court concluded that the Michigan franchisees had sufficiently connected themselves with Florida to allow for the assertion of jurisdiction. First, the contract entered into by the Michigan franchisees was one substantially connected with Florida because of the Florida base of operations of the franchisor. Further, the Court stressed that the contract had included a choice-of-law clause selecting Florida law. While not dispositive of the jurisdictional question, the Court thought the choice-of-law clause to be further evidence that the franchisee had purposefully connected itself with that state by entering into the franchise relationship. While upholding the exercise of jurisdiction, the Court was quick to point out that less significant and enduring contractual relationships might not merit the same treatment. The Court specifically distinguished the case before it from the circumstance of “ ‘out-of-state consumers [owing] on modest personal...
- Cf. Note, Choice of Law in Distinguishing Leases from Security Interests Under the Uniform Commercial Code, 75 Tex. L. Rev. 375 (1996).
- Contract cases are subject to the same basic jurisdictional methodology as are other cases. Fundamentally, any assertion of jurisdiction by a state court requires statutory or common law authorization As discussed elsewhere, the form and content of jurisdictional statutes vary considerably from state to state.
- ’s dictum that a party should not routinely be haled to a distant forum simply because it contracts with an out-of-state concern. The test has some serious drawbacks, however. The inquiry into which party initiated the transaction is intensively factual and of potentially uncertain resolution. Suppose, for instance, that the seller advertises in a trade magazine that is circulated in the forum, and in response the buyer places an order for the delivery of goods to the buyer’s place of business. It is not immediately apparent which party would be considered the “aggressor” in such a transaction. Indeed, in a transaction like the hypothetical one, in which neither side takes any extraordinary steps to bring about the relationship, it may well be that neither side is the initiator or the aggressor in the sense employed in the case law. If so, this leads to the odd result that each side would be required to go to a foreign court to enforce the agreement. Given the uncertainties inherent...
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Copyright Page 2 results
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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- Publication Date: June 4th, 2010
- ISBN: 9780314911605
- Subject: Conflict of Laws
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This authoritative text covers jurisdiction and interstate and international private litigation in torts, contracts, business planning, family law (marriage, same-sex relationships, property rights, support, child custody), property, succession and estate administration, and the recognition of sister-state and foreign judgments. The text examines in depth the development and current state of approaches to choice of law. It also addresses issues of jurisdiction and applicable law in private litigation in federal court.