Conflict of Laws
Authors:
Hay, Peter / Borchers, Patrick J. / Symeonides, Symeon C. / Whytock, Christopher A.
Edition:
6th
Copyright Date:
2018
38 chapters
have results for conflicts of laws
Chapter 2. The Development and Current State of Approaches to Choice of Law 819 results (showing 5 best matches)
- The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons, 82 Tul.L.Rev. 1741 (2008)
- See Symeonides, The First Conflicts Restatement, supra n.94, 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 conflicts...
- See Audit, A Continental Lawyer Looks at Contemporary American Choice-of-Law Principles, 27 Am.J.Comp.L. 589 (1979); de Boer, Prospects for European Conflicts Law in the Twenty-First Century, in P.J. Borchers & J. Zekoll (eds.), International Conflict of Laws for the Third Millennium: Essays in Honor of Friedrich K. Juenger 193 (2001); Hanotiau, The American Conflicts Revolution and European Tort Choice-of-Law Thinking, 30 Am.J.Comp.L. 73 (1982); 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); Kropholler & von Hein, From Approach to Rule-Orientation in American Tort Conflicts in Law and Justice in a Multistate World: Essays in Honor of Arthur T. von Mehren, 317 (Nafziger, & Symeonides, eds.2002); Lando,
- 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,
- 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’...
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Chapter 21. Trusts and Powers of Appointment 121 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);
- 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.”
- One law review commentator has stated: “The broad doctrine . . . that a subsequent shift [in the operative factors] may operate to bring about a change in the governing law, would seem to be a logical holding.” Note, Trust of Personalty and the Conflict of Laws, 89 U.Pa.L.Rev. 360, 366 (1941).
- The local law policies and consequently the conflict of laws policies, vary depending upon whether the assets subject to the power are movables or immovables, whether the power is general or special, whether the donee of the power was also donor, whether the power was created or exercisable by will or deed, as well as the nature of the particular issue which is raised.
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Chapter 18. Contracts 1172 results (showing 5 best matches)
- qualified as a conflicts rule. If so, it would fall outside the scope of a New York choice-of-law clause that did not specifically include it. The New York Court of Appeals had no difficulty concluding that the above section qualified as a conflicts rule, but in light of a strong dissent, the court had to provide a much longer explanation than would otherwise have been necessary. The court relied heavily on its decision in which held that a New York choice-of-law clause did not include New York’s common law rules of conflicts law. The it was “merely a codification of a longstanding common-law conflict-of-laws principle.” However, the common law origin of a conflicts rule should be irrelevant. What is relevant is its . The difference between substantive and conflicts law is that conflicts law is attributive or “indicative” law rather than “dispositive” law.
- (“the Agreement shall be governed by and construed in accordance with the law of the State of Illinois, as applied to contracts made and to be performed solely within such state, without regard to conflict or choice of law rules, provisions, or principles.”); (“[t]his note shall be governed by, and interpreted under, the laws of the State of New York applicable to contracts made and to be performed therein without giving effect to the principles of conflict of laws.”); (“[a]ll agreements . . . are governed by Massachusetts law (excluding conflicts of laws)”); (“This Agreement . . . is governed by and construed in all respects in accordance with the substantive laws of the State of Oklahoma, excluding conflict of laws provisions.”); (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.”);
- 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).
- 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 of law 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. It also conforms to the most likely intent of the parties. It is sensible to assume that parties who had the foresight to address the choice-of-law issue in advance in hopes of thereby preventing litigation also intended to avoid the complexities of a case involving a generic New York choice-of-law clause, the New York Court of Appeals expressed this assumption in strong terms, noting that “[i]t strains credulity that the parties would have chosen to leave the question of the applicable substantive law unanswered and would have desired a court to engage...
- 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).
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Chapter 19. Property 231 results (showing 5 best matches)
- “It is true that the laws of other states cannot render valid conveyances of property within our borders which our laws say are void, for the plain reason that we have exclusive power over the res. . . . But the same reason establishes that the lex rei sitae cannot control personal covenants not purporting to be conveyances, between persons outside the jurisdiction, though concerning a thing within it.” See also (where contract to sell New York real property was executed in New York, court applied New York law to interpret contract, holding that “[i]t is well established in New York that the construction and validity of a contract is governed by the laws of the place where it is made unless the parties indicated otherwise”); (using contract choice-of-law rules, court applied Virginia law to dispute involving contract to sell real property, where contract was executed in Virginia, plaintiff was Virginia resident, and real property was located in Virginia). Cf. ...the law... ...law...of
- 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, 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)
- Restatement (Second) Conflict of Laws § 223
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Chapter 3. Determining the Applicable Law 815 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.”
- 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).
- 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...
- 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).
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Chapter 1. Introduction: The Subject Defined and Overview 27 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,...
- 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.
- Westlake, Private International Law (1858). See
- 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 4. Domicile 298 results (showing 5 best matches)
- Restatement (Second) Conflict of Laws §§ 70 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);
- 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).
- Ness v. Commissioner of Corporations and Taxation, 279 Mass. 369, 181 N.E. 178 (1932)
- “The matter of the determination of any person’s domicile arises in different ways and is construed by the courts for a variety of different purposes. . . . Definitions given in regard to the method of ascertaining the domicile for one purpose are not always applicable in ascertaining the domicile for another purpose.”
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Chapter 17. Torts 1690 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:
- This Part draws from S. Symeonides, The American Choice-of-Law Revolution: Past, Present and Future 265–364 (2006); Symeonides, Choice of Law: Oxford Commentaries on American Law, 273–341 (2016); and Symeonides, Choice of Law for Products Liability: The 1990s and Beyond, 79 Tul. L. Rev. 1247 (2004). For the extensive American bibliography on this subject, see Bigler, Proposal for a National Rule of Law in International Drug Product Liability Cases, 9 J. Legisl. 318 (1982); Birnbaum & Wrubel, Conflicts of Law and State Competition in the Product Liability System, 80 Georgetown L. J. 617 (1992); Juenger, Mass Disasters and the Conflict of Laws, 1989 U. Ill. L. Rev. 105 (1989); Klerman, Values and Methods in Choice of Law for Products Liability: A Comparative Comment on Statutory Solutions, 38 Am. J. Comp. L. 475 (1990); Kozyris, Conflicts Theory for Dummies: Après le Déluge, Where Are We on Producers Liability? 60 La. L. Rev. 1161 (2000); Kraus, ...: One More Trip to the Choice-of...
- Janvey v. Brown, 767 F.3d 430 (5th Cir. 2014) (decided under Texas conflicts law), involved another Ponzi scheme, which was centered in and operated out of Texas, although the entity that perpetrated it was nominally incorporated in Antigua. The trial court did not apply section 148 of Restatement (Second) but concluded that this was a false conflict and that Texas law should govern. The defendants appealed, arguing that Antigua law should govern under section 148. The Fifth Circuit affirmed, finding that: (1) a false conflicts analysis was not incompatible with the Texas courts’ application of the Restatement (Second); and (2) this was a false conflict because: (a) Antigua had no real involvement in the case and no interest in applying its law; and (b) Texas, being the operating center of the scheme and the home state of some of the defrauded investors, had a substantial interest in applying its fraudulent transfer laws. The court also noted that there was no conflict between Texas
- 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, Brown v. Church of the Holy Name of Jesus, 105 R.I. 322, 252 A.2d 176 (1969); 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 foreign law (in both tort and contract conflicts), that law benefitted a forum plaintiff,” Symeonides, , at 112, and that “of the six tort conflicts decided by the New Hampshire Supreme Court, two cases applied forum
- 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.
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Chapter 13. Forming Domestic Relationships 238 results (showing 5 best matches)
- Marriage and Divorce in American Conflicts Law: Governmental Interests Analysis and the Restatement (Second), 72 Colum. L. Rev. 329 (1972)
- 1 Ernest Rabel, The Conflict of Laws 224 (2d ed. 1958); 2 Albert A. Ehrenzweig & Erik Jayme, Private International Law 147 (1973); Ronald H. Graveson, Conflict of Laws 230 (7th ed. 1974).
- Restatement (Second) Conflict of Laws § 283
- 1 Ernest Rabel, The Conflict of Laws 224 (2d ed. 1958); Lawrence Collins et al., Dicey, Morris & Collins, The Conflict of Laws 789 (14th ed.2006); Ronald H. Graveson, Conflict of Laws 251 (7th ed. 1974). See generally Lennart Palsson, Marriage in Comparative Conflict of Laws: Substantive Conditions (1981); Richard Fentiman, The Validity of Marriage and the Proper Law, 44 Camb. L.J. 256 (1985); P. St. J. Smart, Interest Analysis, False Conflicts and the Essential Validity of Marriage, 14 Anglo-Am. L. Rev. 225 (1985). See
- See Lawrence Collins et al., Dicey, Morris & Collins, Conflict of Laws 789 et seq. (14th ed. 2006); Ronald H. Graveson, Conflict of Laws 263 (7th ed. 1974). Cf. 2 Joseph H. Beale, Conflict of Laws § 132.5 (1935). See also Davis, Capacity to Contract a Polygamous Marriage, 5 Fed. L. Rev. 294 (1973); A.J.E. Jaffey, The Essential Validity of Marriage in the English Conflict of Laws, 41 Mod. L. Rev. 38 (1978); I.G.F. Karsten, Capacity to Contract a Polygamous Marriage, 36 Mod. L. Rev. 291 (1973); David Pearl, Capacity for Polygamy, 32 Cambridge L.J. 43 (1973).
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Chapter 14. Marital Property 157 results (showing 5 best matches)
- On community property conflict of laws problems generally, see Kingma,
- See Restatement (Second) of Conflict of Laws ch. 9, topic 2, title D intro. note and § 233 (1971). See also Marsh, Marital Property in Conflict of Laws 11 (1952), available at HeinOnline Legal Classics Library; 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., 2 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,
- See, e.g., Dicey, Morris & Collins, Conflict of Laws 1259 (15th ed. 2012); Graveson, Conflict of Laws 360 (7th ed.1974).
- 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 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 the time of...law
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Chapter 20. Succession 191 results (showing 5 best matches)
- See Russell J. Weintraub, Commentary on the Conflict of Laws § 8.7 (5th ed. 2006); John H. C. Morris, Intestate Succession to Land and the Conflict of Laws, 85 L.Q. Rev. 339 (1969); Moffatt Hancock,
- 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.
- Restatement (Second) of Conflict of Laws §§ 240, 264, cmt. d (Am. Law Inst. 1971); Thomas Atkinson, Handbook of the Law of Wills § 146 (2d ed. 1953).
- Restatement (Second) of Conflict of Laws § 263
- The effect of these validating references “has made it practically impossible for a will to be formally invalid so far as the conflict of laws is concerned.” These validating references are also found in the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, which, in addition to the validating references for execution has a series of additional rules designed to provide maximum validity to wills which are executed away from the situs or domicile of the decedent.
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Chapter 24. Recognition and Enforcement of Foreign Judgments and Decrees 518 results (showing 5 best matches)
- Dicey, Morris & Collins, The Conflict of Laws 735 (Collins, ed., 15th ed.2012); Graveson, Conflict of Laws 619–35 (7th ed.1974).
- The texts of the foregoing Regulations, together with brief commentary, can be found in Hay & Weintraub, Comparative Conflict of Laws—Conventions, Regulations, and Codes (2009); Boele-Woelki and ter Rele, European Private International Law (2d ed.2015); Hay, Borchers & Freer, Conflict of Laws—Cases and Materials 1175 (15th ed.2017).
- 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).
- 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 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.
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Chapter 15. Dissolution of Domestic Relationships and Its Consequences 377 results (showing 5 best matches)
- 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 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 originally determined the applicable substantive law according to its own conflict-of-laws rules ( also the paragraph immediately following). Some national laws look to the law of nationality of each of the spouses (cumulatively). National conflicts rules have now been replaced by common rules for countries to which the “Rome III” Regulation applies. It allows the parties, within limits, to stipulate the substantive law applicable to the divorce. In the absence of such a stipulation, the Regulation provides, in order of priority, for the application of the law of the parties common habitual residence, their last common habitual residence, the law of their common nationality (or domicile, in the case of UK or Irish parties), or the lex fori. In...
- The alternative to the choice of the “defendant’s law” is the law of the obligee’s habitual residence. The latter perhaps accords better with the obligee’s needs and with forum interests. This approach has been adopted by some foreign legal systems. See, e.g., German Introductory Law to the Civil Code (EGBGB) Arts. 18(1), 18(2), in turn patterned after the Hague Convention on the Law Applicable to Maintenance Obligations. Due process concerns (for the defendant) may preclude such a plaintiff-contact dependent approach. In the European Union, this is the default rule under EC Regulation No. 4/2009 on Jurisdiction, Applicable Law and Enforcement of Decisions and Cooperation in Matters of Maintenance Obligations, [2009] Official Journal L 7/1: Art. 3(1). Special rules apply to obligations of parents toward children under age twenty-one and of children toward parents. If the plaintiff-creditor cannot obtain support under any of the general rules, the ...& Borchers, Comparative Conflict...
- See R. Weintraub, Commentary on the Conflict of Laws 346 (6th ed.2010); Restatement (Second) Conflict of Laws § 285
- Australia: Matrimonial Causes Act, 1959–1966, § 95(2)–(3). For discussion and case law see 2 Castel & Walker, Canadian Conflict of Laws § 17.1 (6th ed.2005).
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Chapter 10. Special Jurisdictional Problems 226 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. Federal courts should reserve for themselves the power to apply an independent approach to conflicts questions under the FSIA, especially if the state conflicts...
- Restatement (Second) Conflict of Laws § 24 (1971)
- Restatement (Second) Conflict of Laws § 40
- Restatement (Second) Conflict of Laws § 32 (1971)
- Restatement (Second) Conflict of Laws § 40
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Chapter 23. Corporations, Winding-up, and Bankruptcy 218 results (showing 5 best matches)
- . It has been raised as a defense against indemnification of corporate employees: not as a choice-of-law rule requiring application of New York law, but rather authorization for New York courts to follow New York choice-of-law rules, including New York’s common law internal affairs doctrine. See a foreign corporation operating within New York is subject to provisions of the state’s substantive law, this statute is not a conflict of laws rule and does not compel the application of New York law, rather it must be viewed as the statutory predicate allowing New York to follow its conflict rules in determining the applicable law.”); Lewis v. Dicker, 118 Misc.2d 28459 N.Y.S.2d 215, 216 (1982) (“This court holds, in a case of first impression, that B.C.L., , is not a conflict of laws rule, and does not compel the application of New York domestic law, but rather, allows the application of the center of gravity or grouping of contacts conflict rule.”).
- (“[T]he federal circuits are split on whether state or federal law supplies the choice-of-law rules in bankruptcy cases.”). Compare (“Where no significant federal policy, calling for the imposition of a federal conflicts rule, exists, a bankruptcy court must apply the choice of law rules of the forum state. . . .”) with (“In federal question cases with exclusive jurisdiction in federal court, such as bankruptcy,. . .we apply federal choice-of-law rules. Federal choice-of-law rules are based on the Restatement (Second) of Conflict of Laws.”).
- 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 bankruptcy-related claims from civil courts to bankruptcy courts. Illustratively, this might have occurred if, in 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...
- 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 , [1958] A.C. 509 (existence determined under the law of the alleged place of incorporation).
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Chapter 12. Procedure 284 results (showing 5 best matches)
- . 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.337 (6th ed.2010). Furthermore, as Weintraub correctly points out, under the factual circumstances of the case, a functional approach to choice of law may not have led to the application of Saudi Arabian law in the first place. . 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, that also did substantial business in Saudi Arabia. Given the flexibility of modern choice-of-law rules, there will be 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
- 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, taking evidence abroad, and ascertaining and proving aspects of foreign law that become relevant in American litigation.
- Restatement (Second) of Conflict of Laws § 139(1)
- Dicey, Morris & Collins, The Conflict of Laws 318–34 (15th ed.2012) (noting, however, some relaxing of the traditionally strict foreign-law-as-fact approach in English decisions).
- 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.175 , 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) of Conflict of Laws, § 139, cmt. 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 16. Legitimation and Adoption 126 results (showing 5 best matches)
- See 1 Rabel, Conflict of Laws 677 (2d ed.1958); Huard, The Law of Adoption, Ancient and Modern, 9 Vand.L.Rev. 743 (1956). In England, no provision existed for adoption until 1926. Adoption of Children Act, 16 & 17 Geo. V, c. 29. The current adoption legislation is the Adoption and Children Act 2002. Dicey, Morris & Collins, The Conflict of Laws 1204 (15th ed. 2012).
- 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, and 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).
- Restatement (Second) of Conflict of Laws § 287
- (man failed to properly divorce first wife before marrying second; child born of man and second wife, prior to (void) second marriage, was not legitimated by the void marriage under California law; could not claim under Massachusetts will). But see (applying law of situs of decedent’s estate, and not law of domicile of father at birth of child, to determine legitimacy status and subsequent rights as pretermitted heir), noted in Carver, Note, Conflict of Laws: Law Governing Legitimation, 33 Cal.L.Rev. 622, 633 (1945);
- Restatement (Second) of Conflict of Laws § 288
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Preface to the Sixth Edition 6 results (showing 5 best matches)
- Early on in the American conflicts revolution, the field took on a remarkable pluralism of theories. But things have changed from the free-wheeling days of the 1960’s and 1970’s when U.S. courts, in droves, abandoned the traditional territorial system in favor of much more flexible methodologies. While the conflicts revolution broke the arguably too-tight hold of territoriality, U.S. courts have now begun to seek out more predictability both in choice of law and jurisdiction, while attempting to consolidate the gains of the revolution. The result has been some important convergence in result patterns, as well as greater harmony with foreign systems. Work has begun on a Third Restatement of the Conflict of Laws, which presumably will supersede the transitional Second Restatement, promulgated in 1971.
- 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. We seek to describe, not to attempt to prescribe, developments in the field.
- The conflict-of-laws river continues to flow swiftly, but its course has changed in the United States. Since the publication of the last edition there have been important developments not only in the United States, but elsewhere in the world.
- edition of Conflict of Laws ofofof
- ofAlbany LawofofLaw,ofLaw,ofofLaw,LawofofLaw,ofLaw, and the University of California, Irvine.
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Chapter 22. Probate and Administration of Estates 291 results (showing 5 best matches)
- 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).
- Restatement (Second) Conflict of Laws § 329 (1971)
- Note, The Statutory Successor, the Receiver and the Executor in Conflict of Laws, 44 Colum. L. Rev. 549 (1944); Moore, Estate Administration and the Conflict of Laws, 35 Va.L.Rev. 316 (1949);
- Conflict-of-laws issues regarding the powers and liabilities of conservators are very similar to those involved in questions of powers and liabilities of representatives of decedents’ estates, and this similarity is frequently pointed out and relied upon by courts as a basis of decision.
- For general discussion see 1 Woerner, The American Law of Administration § 89 (3d ed.1923). See also Scoles, Conflict of Laws and Nonbarrable Interests in Administration of Decedents’ Estates, 8 Fla.U.L.Rev. 151, 172 (1955); Scoles, Choice of Law in Family Property Transactions, 209 Recueil des Cours, 17 (1988–II).
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Chapter 5. Basic Considerations in Personal Jurisdiction 263 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)).
- Restatement (Second) Conflict of Laws § 96
- Restatement (Second) Conflict of Laws § 30
- In this chapter, and the six that follow, we examine the law of personal jurisdiction. We cannot, of course, give a treatment as detailed as if the entire book were devoted to the subject. 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
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Summary of Contents 50 results (showing 5 best matches)
- I.Definitions—Conflict of Laws—Private International Law
- I.Introduction—The Use of the Domicile Concept in Conflict of Laws
- III.Conflict-of-Laws Issues Regarding Particular Types of Domestic Relationships
- I.Marriage and Other Domestic Relationships as a Problem in the Conflict of Laws
- VIII. Conflicts Law Reform in Other Countries
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Table of Contents 231 results (showing 5 best matches)
- I.Definitions—Conflict of Laws—Private International Law
- I.Introduction—The Use of the Domicile Concept in Conflict of Laws
- III.Conflict-of-Laws Issues Regarding Particular Types of Domestic Relationships
- I.Marriage and Other Domestic Relationships as a Problem in the Conflict of Laws
- D.Marital Property as Conflict of Laws Issues in the United States
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Chapter 11. Limitations on Jurisdiction 163 results (showing 5 best matches)
- 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.
- 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 , 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 was generally intended “on the basis of convenience and fairness, simply to authorize a change of courtrooms.” 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 argument for the need for uniform
- Restatement (Second) Conflict of Laws § 85
- As discussed in the last section, in federal cases in which the basis for jurisdiction is one other than the diversity of the parties, courts universally apply the principles of favoring enforcement of exclusive forum clauses. The situation is somewhat more complex, however, when the basis for federal subject matter jurisdiction is diversity of the parties. In diversity cases, federal courts are usually required to apply the same “substantive” law that would be applied by their state court counterparts, including the conflict of law principles applicable in state court. In many federal diversity suits involving an exclusive forum clause, this presents no real difficulty, because the law of most states is in accord with the pro-enforcement philosophy of There is also the possibility of more subtle differences between state and federal law. A state court might, for instance, adopt the basic pro-enforcement philosophy of ...that it goes too far in allowing the enforcement of adhesive...
- See Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929);
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Chapter 6. General Jurisdiction 130 results (showing 5 best matches)
- See generally M. Reimann, Conflict of Laws in Western Europe: A Guide Through the Jungle 75–77 (1995); Hay, supra n.6, 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).
- Restatement (Second) Conflict of Laws § 31
- Restatement (Second) Conflict of Laws § 30
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Center Title 1 result
Index 380 results (showing 5 best matches)
Chapter 7. Specific Jurisdiction in Tort Cases 112 results (showing 5 best matches)
- Restatement (Second) Conflict of Laws § 87
- , 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, 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. However, breach
- Id. (“Freeform notions of fundamental fairness divorced from traditional practice cannot transform a judgment rendered in the absence of authority into law. As a general rule, the sovereign’s exercise of power requires some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”) (internal quotations omitted).
- 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
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Table of Restatment Citations 479 results (showing 5 best matches)
Title Page 7 results (showing 5 best matches)
West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Justice Thurgood Marshall Distinguished Professor of LawUniversity of Virginia School of Law
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
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Chapter 9. Specific Jurisdiction in Statutory Cases 86 results (showing 5 best matches)
- 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. 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
- 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.
- Antitrust actions, as with other types of specialized statutory actions, present their own set of special jurisdictional problems. One problem is that of undifferentiated harm. Given the integrated state of the national—indeed, the world—economy, an illegal restraint of trade in one location can have ripple effects in remote locations. A second problem, present with antitrust theories arising under the principal federal statutes, is whether federal law authorizes a broader jurisdictional reach than the usual requirement of minimum contacts the forum state.
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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...
- 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 purchases.’ ”
- 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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Table of Cases 845 results (showing 5 best matches)
- Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 442
- Corporate Creations Enterprises LLC v. Brian R. Fons Attorney at Law P.C., 1087
- Moretti & Perlow Law Offices v. Aleet Assoc., 505
- Nadelmann, Solomons v. Ross and International Bankruptcy Law, 1371
- Sheet Metal Workers’ Intern. Ass’n, Local 15 AFL-CIO v. Law Fabrication, LLC, 1123
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Table of Statutes and Rules 61 results (showing 5 best matches)
Copyright Page 3 results
- 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.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Printed in the United States of America
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- Publication Date: July 23rd, 2018
- ISBN: 9781634603324
- 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.
