Preface 7 results (showing 5 best matches)
- The temptation to expand at many points was great, and at some junctures of choice of law—the most challenging of the conflicts family—almost irresistible. I resisted. I have kept it always in the front of my mind that this is a Nutshell. I trust that the reader who at some points may want more will remember that, too. The reader who wants more will find helpful the brief bibliography in § 11.
- This Nutshell’s goal is to reduce each topic to workable size, so that if an answer is not in hand, it will at least be within reach. It would please me if a law student or practicing lawyer going through this book were to come out with the feeling that conflict of laws is negotiable after all; and it would delight me if each of them were to feel as if addressed as the other.
- The field of the conflict of laws has changed dramatically over the years. The subject is traditionally broken into three parts: jurisdiction, choice of law and judgment recognition. This Nutshell covers all three. Although judgment recognition has been a relatively stable body of law, jurisdiction and choice of law have both seen upheaval (particularly during the time of the “conflicts revolution” which began in the 1960’s) and are still marked by the shifting sands of doctrine to this day.
- This Nutshell is designed as an introduction and review tool for students and as a quick refresher and reference tool for lawyers. It is conflict of laws as I see it in perspective, with stress on the things that a broadened vantage point tells me are important. It tries to avoid the occasional pitfall of the enthusiastic teacher: the attempt to do too much, often with the consequence of doing too little. And it tries to avoid the occasional pitfall of the harried lawyer: preoccupation with a rule’s content to such an extent that sight is lost of its purpose, with the consequence of a lost opportunity, and perhaps a lost case.
- This book is dedicated to my late colleague David Siegel. He was intellectual giant in multiple fields, but most especially the conflict of laws and New York procedure. David was the original author of this Nutshell. For the third edition I was honored to be his co-author and for this issue I am the sole named author though this edition owes much to his brilliance.
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering 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
- © 2016 LEG, Inc. d/b/a West Academic
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Chapter 4. Choice of Law 357 results (showing 5 best matches)
- The technique of determining whether a prima facie conflict is in fact just a “false conflict” is discussed by Professor Currie in his Selected Essays on the Conflict of Laws (p. 189) and by Professor Cavers in his Choice of Law Process (p. 89).
- “Interest analysis” is the banner under which Hurtado goes, but the case, along with Reich, is later described by the same court in Bernhard (Cal.1976) as involving “false conflicts”, which means that although the competing laws may seem in conflict on their face, an analysis of their underlying policies reveals that they aim at different targets and that there is no competition and hence no conflict after all. (See § 81 on false conflicts.) In Bernhard, the court says that it is presented with a “true” conflict for the first time since adopting the interest analysis approach. Resolving this true conflict, the court decided on a “comparative impairment” test. This test, said the court:
- When the required analysis of underlying policies reveals that one state really has no interest in the outcome of an issue despite the seeming conflict between the on-the-face statements of its and the other state’s law, the situation is sometimes denominated a “false conflict”. That term appeared in § 66, and will again in § 81.
- California’s Reich case (Cal.1967; § 79) can illustrate; the court that decided it later described it as involving “false conflicts”. (Bernhard, Cal.1976.) In Reich, several members of an Ohio family were killed or injured in a Missouri collision with a car owned and driven by a Californian. Neither Ohio nor California had any arbitrary limit on wrongful death damages, but Missouri, the place of the accident, had. The court in Reich applied Ohio law after an interests analysis. A “false conflict” analysis would merely have said that the Missouri limitation, whatever its scope, was not aimed at a case involving no Missourians on any side. Hence the idea that Missouri law was in conflict with the laws of either Ohio or California posed a “false conflict”. Interest-analysis phraseology would simply say that Missouri had no interest in the issue in this case, or an interest
- Interesting to juxtapose alongside the case in which the inconsistent policies of two (or more) states are involved (the “true” conflict), and the case in which the policy of only one state is involved (the “false” conflict), is the case in which neither state much cares. This is the “no interest” or, as Professor Currie termed it, the “unprovided-for” case. Some call these “no interest” cases. It appears when, despite a superficial conflict between two competing laws on their face, an analysis of their underlying policies reveals that on the facts of the particular case neither is threatened.
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Chapter 1. Introductory 34 results (showing 5 best matches)
- It is in the law reviews that one often finds the major writings on conflict of laws. But there are several textbooks and like works that students and lawyers may find helpful. One of these, the Hay, Borchers and Symeonides Hornbook on Conflict of Laws (West 2010), is in its fifth edition. Another is American Conflicts Law by McDougal, Felix and Whitten, which is in its sixth edition (2011). Russell J. Weintraub’s Commentary on the Conflict of Laws is in its sixth edition (2010). Famous writings of a somewhat older vintage include The Choice-of-Law Process (Mich.U.Press 1965) in which David F. Cavers probes choice of law theory, and Brainerd Currie’s Selected Essays on the Conflict of Laws (Duke U.Press 1963).
- There are three major subdivisions of the “Conflict of Laws”. “Choice of law”, for which “conflict of laws” is often used as a synonym, is only one of them, albeit the most difficult and challenging. Another is jurisdiction. The third is the recognition and enforcement of judgments. In the chronological order in which these three subjects are likely to be met in practice, jurisdiction comes first, choice of law second, and judgments last. I’ll do them in that order. The next few sections set forth an introductory perspective on each of these major conflicts realms.
- Nor need a conflict of laws problem involve different sovereigns. A conflict can occur within subdivisions of a single sovereign. That is of course the case in the United States, where each state is sovereign within the separate sovereignty of the United States—the phenomenon that accounts in large measure for the Erie (USSC 1938; Chapter V) realm—and it can be found as well between mere municipal subdivisions of a single sovereign unit. For example: In the absence of an issue’s resolution by a state legislature or by its highest court, courts or agencies in different districts or departments or counties (etc.) of the same state may come up with different resolutions of a given issue. If the case has a connection to several such units, a conflict of laws problem, or at least one calling for analogous resolutions, is at hand.
- Domicile is a giant subject in the conflict of laws and usually occupies its own chapter in conflicts casebooks.. But from this the impression should not be drawn that domicile is just another subdivision of conflicts, vying with jurisdiction, choice of law, and recognition of judgments to make the trio a quartet. The trio stands. As frequently as one meets domicile, the meeting is always on the terrain of one of the big three, especially the first two. Domicile furnishes a basis for judicial jurisdiction in several ways, involving both in personam and in rem jurisdiction (§§ 28 and 43). And when it comes to listing the elements that will determine a choice of law, domicile figures prominently. Because of its influential role in conflicts, domicile’s various ingredients are best collated and noted early so they can then be available for use throughout. Hence the assignment of Chapter II to domicile.
- In its narrow sense, a “conflict of laws” describes a case that has had contacts with two or more states, and in which the laws of these various states differ with respect to some issue that has arisen in the case. The very fact of the difference will make it necessary for the judge to choose among the competing laws, and on this choice the whole case may hang. This area is more accurately described as the “choice of law” realm, and although it is often the only reference meant by a “conflict of laws”, choice of law is in fact only one of three major subjects embraced by the “Conflict of Laws” course as it is generally structured in American law schools. Europeans, by the way, prefer the term “Private International Law” to describe what one in the United States calls “Conflict of Laws”: the domain of rights, duties, and disputes between and among persons from different places. What is understood domestically as “International Law”—the realm of rights, duties, and disputes between...
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Chapter 3. Jurisdiction 289 results (showing 5 best matches)
- The contractual conferral of jurisdiction is also more a phenomenon of arbitration than of litigation. Arbitration is an ever growing source of dispute resolution, but since a contract is its principal source of jurisdiction, the array of conflicts problems one meets in litigation has fewer counterparts in arbitration. The several conflicts points to note in respect of arbitration involve choice of law and the recognition of judgments more than they do jurisdiction, and all are tied together later (§§ 75, 120).
- Seider depended on the forum state being the “situs” of the intangible obligations arising out of the insurance policy. The situs of intangibles has been a frequent problem in conflict of laws and is a separate subject in the next section.
- The position of the debtor must be considered. Neither in an escheat nor any other case should a state compel a debtor to pay a sum of money or deliver property to one person if the judgment will not bind others who have conflicting claims. It exposes the debtor to multiple liability. He would be “deprived of due process of law if he is compelled to relinquish [the property or pay the debt] without assurance that he will not be held liable again in another jurisdiction or in a suit brought by a claimant who is not bound by the first judgment” (Western Union, USSC 1961).
- The full faith and credit clause (Const. Art. IV, § 1) is at the heart of “recognition of judgments”, the third of the three main subtopics of conflict of laws (treated in this book in § 108 et seq.), but a brief note about it is helpful here, under jurisdiction.
- Even that may not help if the statute is lax in its demands and due process is thereby violated. A prime source of conflict on this score is the statute that authorizes what is loosely termed a “cognovit” instrument. A cognovit is a confession of judgment, but in many quarters it has come to connote an instrument, usually a promissory note or the equivalent, in which the borrower or credit buyer agrees that in the event of a default in his obligation anyone may be designated his lawyer to confess judgment in his behalf. Sometimes there is not even a stated restriction as to where the judgment may be entered, thus giving the creditor the whole world to choose from as to both person (to sign the formal confession papers) and place (which may not even be related to the case). A judgment so predicated may be resisted in a second forum as violative of due process, perhaps even being found not to qualify as a judicial proceeding—of the kind to earn full faith and credit—at all (Atlas, NY...
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Chapter 7. Family 74 results (showing 5 best matches)
- Even in light of these recent developments, marriage is not as often a problem in conflict of laws as is divorce. Marriage is easy and divorce is hard, rather the reverse of the way a lot of thoughtful people think things ought to be. The situation has made for a fascinating aggregate of divorce cases. Their study is next.
- Under the heading of “family” comes marriage as well as the actions that dissolve or annul it. The law respecting marriage is briefly stated in § 122. The rest of this chapter is mainly devoted to the myriad aspects of breaking the marriage up—“matrimonial” actions, which have a far greater hold on the conflict of laws.
- Assuming properly based in personam jurisdiction, the court can order support for the children, or between the spouses themselves, and this of course includes a divorcing court if the support claim is made as part of a matrimonial action, as it often is. If the monetary disposition is adjudicated in the form of periodic payments, the next conflict of laws realm that the judgment will meet, if any, is likely to concern F-2’s recognition obligation, a matter addressed in § 129. The F-1 judgment will at least be able to approach that meeting with the sturdy credentials of a “bilateral” decree, the in personam jurisdiction of F-1 having made it that.
- A related problem concerns a spouse’s right to elect against a will. If of the several related jurisdictions some confer such a right and others do not, or confer it in different measures, whose law governs? Here an analogy lies to the usual post-death rules of property distribution. For land, situs law governs. For personal property, the law of the parties’ domicile governs. The domicile would have the predominant interest in whether and to what extent a surviving spouse should have a right of election against the decedent-spouse’s will. In Clark (NY 1968), the right-to-elect law of Virginia, the domicile, was applied despite the testator’s placing the subject personal property in New York and stipulating in his will to have New York law apply. Should the spouses have different domiciles at the time of the death of one of them, a logical choice of law for an election problem, should there be a conflict, is that of the state in which the couple last cohabited as spouses (the final “...
- The parties, with or without estrangement, can stipulate to a choice of law to govern the nature of their ownership of specified property. This has been upheld, especially when the law stipulated to is that of the state to which the property has in fact been transferred. (Wyatt, NY 1965.) When there is no such stipulation (and there usually is not), the best that the body of conflict of laws can manage when multistate contacts are present is a few general rules.
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Chapter 6. Judgments 74 results (showing 5 best matches)
- The major case is Treinies (USSC 1939). Mr. Pelkes and Mrs. Mason were vying for certain shares of stock. F-1 was a Washington state court. It found for Pelkes against Mason after upholding its jurisdiction against Mason’s attack, which she made in an appearance in that action. Idaho was F-2. With jurisdiction of both parties, Idaho refused, despite Pelkes insistence, to recognize the Washington judgment. Directly contra to what Washington itself had held, the Idaho court said Washington had no jurisdiction. It then gave judgment for Mason. The company whose shares were involved then brought an interpleader claim against both parties in an Idaho federal court, and that was F-3. The U.S. Supreme Court said that F-3 had to recognize the F-2 judgment even if F-2 was in error for not recognizing F-1’s; that if F-2 (Idaho) denied full faith and credit to F-1’s judgment, that was an issue of federal law that should have been taken to the U.S. Supreme Court within the F-2 proceedings. (In...
- The practical lesson here may be that one is better off returning to the court that issued the injunction to get it enforced. In Fall the husband could have been held in contempt by the Washington court for refusing to transfer title. In Baker the defendant’s employee could have been held in contempt for agreeing to testify. As noted earlier (§ 112), conflicts perceivable in these alternatives have never been resolved by the Supreme Court.
- The third and last of the three major conflict of laws realms is the recognition of judgments. It is often studied before choice of law in law school curricula, but its more logical place is after. It can then build on principles studied during choice of law, as it often has to do.
- The form that the attack takes in F-2 will be determined by F-2 procedures, however, a point that becomes important if in one of the states there has not been a merger of law and equity and separate courts are maintained for each. Fraud, for example, is generally deemed an “equitable” defense. At common law, a law court could not entertain the fraud defense against a “law” judgment. It took a separate action in chancery to enjoin the enforcement of the law judgment based on the fraud. If F-2 retains the separation of courts, it may require D, when sued on the F-1 judgment in an F-2 law court, to bring a separate equity action in F-2 to enjoin the enforcement in order to take advantage of the fraud defense that F-1 allows (see Christmas, USSC 1866, where D did not do that and thus failed in the F-2 attack). Conversely, where it is F-1 that maintains the separation of law and equity but F-2 has merged them, a showing that F-1 would entertain a separate equity action to enjoin its law...
- Arranging for an appropriate proceeding in F-2, where the land is, after succeeding in a litigation in F-1, is necessitated by the common understanding in this country that one state cannot directly affect land title in another. A deed to F-2 land made by a court-appointed person in F-1, such as the clerk or a sheriff or referee or the like, apparently need not be recognized by F-2 even if F-1 had in personam jurisdiction of the owner of the land (see § 42). This is a curiosity, because a deed made by the owner himself (assuming always that it is in the form that F-2 requires) would apparently be valid in F-2 even if made in F-1 under the threat of a contempt sanction (Deschenes, NY 1928).
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Chapter 2. Domicile 42 results (showing 5 best matches)
- When acts and words conflict, the acts will usually control. In the final analysis, the decision is up to the highest court that the issue can be taken to. In the well-known Dorrance cases, one in Pennsylvania (1932) and one in New Jersey (1934), there were conflicting findings of domicile, both of which survived—at a cost of millions each—for want of any review by the United States Supreme Court. Mr. Dorrance was one of the financial wizards (and beneficiaries) behind the Campbell’s Soup Company, and in the Dorrance cases Pennsylvania and New Jersey each took a look at Dorrance’s estate and smacked their lips and said “Mm, Mm, good!” Dorrance had big estates in each of Pennsylvania and New Jersey, the former being the bigger and more frequently used. The Pennsylvania court, listing the numerous things one does out of one’s home base, found Pennsylvania to be the state in which Dorrance was domiciled when he died and hence the state entitled to a full estate tax under state law. New...
- Domicile puts in many appearances in the conflict of laws, especially in the first two of the three major realms: jurisdiction and choice of law. It has less of a function in the third one, recognition of judgments, but it becomes relevant there, too. If, for example, P has a valid judgment against D from a court of other than D’s domicile, and can’t enforce it in the forum of rendition, P is wont to turn to D’s domicile, where D likely has property, and take steps to obtain a domicile-court judgment based on the foreign one so as to make it enforceable against that property. More on that will be seen in the chapter on judgments (Chapter VI).
- In the usual situation in which a forum choice of law rule has been applied and has required the judge to choose the law of another state in respect of a given issue, the law chosen will be that which the other state applies to local cases having no foreign elements. When the forum state looks to foreign law, it will most often look to its “internal” law, a word used to exclude and distinguish choice of law rules. A kind of chaos can result if State F, the forum, were to consult the choice of law rules of State X, only to find that State X’s choice of law rules say to apply State F’s choice of law rules. This chaos is called “renvoi” in the conflict of laws, and it merits a separate section (the next one) and a slow-motion build-up.
- In a similar case in which four states demanded estate taxes based on conflicting claims of domicile and the four together would have depleted the estate entirely, one of the states, Texas, brought an original U.S. Supreme Court action against the other three, Florida, Massachusetts and New York, and the Supreme Court entertained it and found Massachusetts to be the domicile (Texas v. Florida, 306 U.S. 398 (USSC 1939)). Texas probably would have liked to play that one over. It got a chance of sorts in a later case when the Supreme Court allowed jurisdiction in California v. Texas, 457 U.S. 164 (USSC 1982), because the taxes threatened to bankrupt the Howard Hughes estate. The case, however, settled.
- In the more common choice of law situation, in which the parties are from various states and the facts involved may have arisen in still another—the meat of choice of law as so often met in contract, tort, succession, and property cases—domicile plays a weighty role in determining whose law to apply to a given issue. Domicile is by no means the only element weighed on the choice of law scale, but it is one of the heaviest. Indeed, if all of the parties are domiciled in the same state, there is a likelihood that that state’s law will apply to significant issues in the case even if the conduct involved occurred and the cause of action therefore arose elsewhere. Babcock v. Jackson, 191 N.E.2d 279 (N.Y. 1963) is a famous example of this in the tort area (§ 78). There are counterparts in other areas.
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Chapter 5. Erie Doctrine 47 results (showing 5 best matches)
- A different constitutional issue can also arise in an Erie setting. When it is said that a federal court must apply state choice of law rules in a diversity case (§ 103), the assumption is that the choice the state would make is itself a constitutional one. Indeed, the same would be true of a non-conflicts diversity case in which the federal court is merely looking to the forum’s internal substantive law: it had better be constitutional in the judge’s eyes. If the state courts, and even the state’s highest court, have passed on a given law or choice of law rule and found it satisfactory to federal constitutional standards, the finding will of course be persuasive to a federal judge facing the same issue, but it is not likely to be decisive.
- It takes little imagination to guess that the problem of Erie lies in determining whether in a diversity case a given issue is substantive, which requires reference to state law, or procedural, which does not. No simple formula has ever been devised to determine with certainty what’s substantive and what’s procedural, however. Many an issue that might fit under a “procedural” label in some other context has been in effect labeled “substantive” in a diversity case so as to assure recourse to state law. Many courts have in fact determined that very often labels can’t be used at all.
- Section 1404(a) assumes that there are several permissible districts that would be a proper venue for the federal action, and authorizes the court in the district in which the action was commenced to transfer it to another district if it appears to be the more convenient one. It is required that the proposed transferee district, in addition to being a proper venue under federal statutes (e.g., 28 U.S.C.A. § 1391), also be a district in which the defendant would have been amenable to personal jurisdiction (Hoffman, USSC 1960). Section 1404(a) of course poses the issue—should a federal diversity case be transferred from one state to another on its authority—of which state’s law governs the transferred case under Erie. The Supreme Court held in Van Dusen (1964) that transferor state law accompanies the transferred case; that the change under § 1404(a) is merely one of courtrooms, not of law, and that the federal judge in the transferee district is for Erie purposes to deem herself...
- In Van Dusen, it was the defendant who moved for the transfer. In Ferens (1990), the U.S. Supreme Court held that the same rule applies—the § 1404(a) transferee must apply transferor law under the Erie rule—even when it is the plaintiff who moves for the transfer. The plaintiff in Ferens brought a personal injury action in Pennsylvania. One of the counts was in tort, however, and the Pennsylvania statute of limitations on it had expired. So the plaintiff brought the tort count in a federal court in Mississippi, which had a much longer statute of limitations (and no borrowing statute that would have selected some other state’s statute of limitations on the facts), and then moved to transfer the case to Pennsylvania under § 1404(a). It worked. The plaintiff was able to keep his favored forum (Pennsylvania) while securing the more favorable choice of Mississippi law on the limitations issue. It is doubtful that § 1404(a), or the Erie panel, ever intended this kind of blatant forum...
- Probably the principal pronouncement on the Erie doctrine since Erie itself is Hanna v. Plumer 380 U.S. 460 (USSC 1965). The case was against an executor in a federal court in Massachusetts. Massachusetts had a statute requiring that service on the executor be made by “delivery in hand”. Service was instead made by delivery to the defendant’s wife at his residence, precisely as authorized by the federal rule applicable at the time, Rule 4(d)(1) (now 4(e)(2)) of the Federal Rules of Civil Procedure. The district court dismissed for failure to follow the state service method, and the dismissal was affirmed at circuit. In that posture the case reached the Supreme Court. For relying on a federal rule in this diversity case, the plaintiff was punished with a dismissal too late to start the action over. The Supreme Court realized that if this result were to be affirmed, it would be dangerous for any party to rely on the Federal Rules of Civil Procedure for procedural instruction, even for...
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Index 100 results (showing 5 best matches)
Outline 33 results (showing 5 best matches)
- Publication Date: November 10th, 2015
- ISBN: 9781634597463
- Subject: Conflict of Laws
- Series: Nutshells
- Type: Overviews
- Description: Develop perspective on the conflicts of law arena with Borchers’s broad vantage point. Topics covered include issues involving domicile; jurisdiction; adjudication; statute of limitations; foreign law; contract and business cases; torts; "renvoi"; Erie Doctrine; judgments; and family (marriage, dissolution of marriage, property incidents, and custody). Use Conflicts in a Nutshell as an introduction and review tool for students or as a quick refresher and reference tool for lawyers.