Download Thurs. Feb. 4

Mon. Feb. 20
Hernandez v. Mesa.
U.S. border patrol agent named Mesa, in US,
shot and killed a Mexican citizen named
Hernandez, in Mexico.
Bivens action filed by Hernandez’s parents, as
successors-in-interest to his estate, alleging
excessive force under the Fourth Amendment.
Party Autonomy
• Choice-of-law clauses in contracts
• Choice of law that validates contracts
• Could be used even when no choice-of-law provisions
exists
• Could be used to choose law other than the law in the
choice-of-law clause
Rest 2d § 187. Law Of The State Chosen By The Parties
• (1) The law of the state chosen by the parties to
govern their contractual rights and duties will be
applied if the particular issue is one which the parties
could have resolved by an explicit provision in their
agreement directed to that issue.
• Whether the parties could have determined a
particular issue by explicit agreement directed to that
issue is a question to be determined by the local law
of the state selected by application of the rule of §
188. Usually, however, this will be a question that
would be decided the same way by the relevant local
law rules of all the potentially interested states. On
such occasions, there is no need for the forum to
determine the state of the applicable law.
187(2) The law of the state chosen by the parties to govern
their contractual rights and duties will be applied, even if
the particular issue is one which the parties could not have
resolved by an explicit provision in their agreement directed
to that issue, unless either
(a) the chosen state has no substantial relationship to the
parties or the transaction and there is no other reasonable
basis for the parties' choice, or
• (b) application of the law of the chosen state would
be contrary to a fundamental policy of a state which
has a materially greater interest than the chosen state
in the determination of the particular issue and
which, under the rule of § 188, would be the state of
the applicable law in the absence of an effective
choice of law by the parties.
• On occasion, the parties may choose a law that would
declare the contract invalid. In such situations, the chosen
law will not be applied by reason of the parties' choice. To
do so would defeat the expectations of the parties which it
is the purpose of the present rule to protect. The parties can
be assumed to have intended that the provisions of the
contract would be binding upon them. If the parties have
chosen a law that would invalidate the contract, it can be
assumed that they did so by mistake. If, however, the
chosen law is that of the state of the otherwise applicable
law under the rule of § 188, this law will be applied even
when it invalidates the contract. Such application will be by
reason of the rule of § 188, and not by reason of the fact
that this was the law chosen by the parties.
interest analysis
Harris v. Harris (Ga. 1984)
two married but separated Georgians get into
car accident in Georgia in which husband is
negligent – wife sues
does Georgia spousal immunity rule apply?
purposivism
textualism
WIS. STAT. § 895.03 (action for wrongful death
“caused in this state”)
In Harris v. Harris, does the court takes into
account…?
avoidance of fraudulent suits
marital harmony
compensation to wife
deterrence of negligent husbands
two married Californians get into car accident
in Georgia in which husband is negligent, wife
sues
does Georgia’s spousal immunity rule apply?
California is interested in its negligence law
applying
- compensation
Georgia is not interested in its spousal
immunity law applying
Does the court take all considerations into
account:
compensation to wife (Ca)
deterrence of negligent husbands
avoidance of fraudulent suits
marital harmony
•
Millikan v Pratt
• Mass D contracted with Maine Ps to
guarantee D’s husband’s payment
• Sent by her husband by mail from Mass
to Maine
• D’s husband did not pay
• Ps demanded of D
• She refused
• Mass had law not allowing married
women to contract as surety
• Maine didn’t
true conflicts
Schmillikan v Schpratt
Maine D contracted with Mass Ps to guarantee
D’s husband’s payment
Sent by her husband by mail from Maine to
Mass
D’s husband did not pay
Ps demanded of D
She refused
Mass had law not allowing married women to
contract as surety
Maine didn’t
false conflicts
Is it a “false conflict” when each jurisdiction has
law with the same content…?
Marie v Garrison
Mo K, suit in NY
NY’s statute of frauds – no contract shall be
valid unless in writing
MO statute of frauds – no contract shall be
enforced unless in writing
finding false conflicts…
• Babcock v. Jackson (NY 1963)
• NY P – guest in car w/ NY D
• Crashed into stone wall in Ontario
• Does Ontario’s guest statute apply?
• Dym v Gordon (NY 1965)
• P and D both NY domiciliaries
• BUT taking courses at U of Colo
• Collision with another vehicle (from Kansas) in Colo
• Does Colo guest statute apply?
How is Dym different from Babcock?
Tooker v. Lopez (NY 1969)
how is Tooker similar to Babcock?
How is Tooker similar to Dym?
Does the reinterpretation of the guest statute
as concerning fraud really point to the D’s
domicile?
Fuld’s concurrence…
Breitel’s dissent
What about Susan Silk?
Schultz v Boy Scouts of America
(NY 1985)
conduct-regulating
loss-allocating
conduct-regulating…
Creates liability and is conduct regulating…?
example?
Blocks liability and is conduct regulating…?
example?
loss-allocating
Creates liability and is loss-allocating…?
example?
Blocks liability and is loss-allocating…?
example?
Is negligence law conduct regulating or loss
allocating or both?
Assume that a jurisdiction does not have a
cause of action for tortious interference of
contract
- conduct-regulating?
- loss-allocating?
- both?
Why is charitable immunity loss-allocating?
Does the common domicile of P and D matter
for charitable immunity?
- assume the Schultz’s are domiciled
in NY
- the Boy Scouts are domiciled in
TX
- but the scout camp is always in
NJ, where the molestation occurs
Why doesn’t New York law apply?
• The three reasons most often urged in support of
applying the law of the forum-locus in cases such as
this are: (1) to protect medical creditors who provided
services to injured parties in the locus State, (2) to
prevent injured tort victims from becoming public
wards in the locus State and (3) the deterrent effect
application of locus law has on future tort-feasors in
the locus State.
• The first two reasons share common weaknesses.
First, in the abstract, neither reason necessarily
requires application of the locus jurisdiction's law, but
rather invariably mandates application of the law of
the jurisdiction that would either allow recovery or
allow the greater recovery. They are subject to
criticism, therefore, as being biased in favor of
recovery.
• Finally, although it is conceivable that application of
New York's law in this case would have some
deterrent effect on future tortious conduct in this
State, New York's deterrent interest is considerably
less because none of the parties is a resident and the
rule in conflict is loss-allocating rather than conductregulating.
Kell v. Henderson (N.Y. Sup. Ct. 1965)
Residents of Ontario
Trip begins and ends in Ontario
Accident in NY
Court applied NY law, not Ontario
guest statute
Dissent: [T]here can be little doubt that New York has an
interest in insuring that justice be done to nonresidents
who have come to this State and suffered serious injuries
herein. There is no cogent reason to deem that interest
any weaker whether such guests are here for the purpose
of conducting business or personal affairs, or, as in this
case, have chosen to spend their vacation in New York.
Likewise, it cannot be denied that this State has a strong
legitimate interest in deterring serious tortious
misconduct, including the kind of reprehensible
malfeasance that has victimized the nonresident infant
plaintiffs in this case.
P sues D under a theory of respondeat
superior for the torts of the employee. D
alleges charitable immunity.
P sues D for negligent hiring. D alleges
charitable immunity.
“As to defendant Franciscan Brothers, this action
requires an application of the third of the rules
set forth in Neumeier because the parties are
domiciled in different jurisdictions with
conflicting loss-distribution rules and the locus
of the tort is New York, a separate jurisdiction.
In that situation the law of the place of the tort
will normally apply, unless displacing it ‘”will
advance” the relevant substantive law purposes
without impairing the smooth working of the
multi-state system or producing great
uncertainty for litigants’”
For the same reasons stated in our analysis of the
action against defendant Boy Scouts, application of
the law of New Jersey in plaintiffs' action against
defendant Franciscan Brothers would further that
State's interest in enforcing the decision of its
domiciliaries to accept the burdens as well as the
benefits of that State's loss-distribution tort rules
and its interest in promoting the continuation and
expansion of defendant's charitable activities in
that State.
Conversely, although application of New
Jersey's law may not affirmatively advance the
substantive law purposes of New York, it will
not frustrate those interests because New York
has no significant interest in applying its own
law to this dispute.
Finally, application of New Jersey law will enhance
"the smooth working of the multi-state system" by
actually reducing the incentive for forum shopping
and it will provide certainty for the litigants whose
only reasonable expectation surely would have
been that the law of the jurisdiction where
plaintiffs are domiciled and defendant sends its
teachers would apply, not the law of New York
where the parties had only isolated and infrequent
contacts as a result of Coakeley's position as Boy
Scout leader.