When thinking about the Carroll case and the study
questions
afterwards, concentrate on the following issues:
1) What are the reasons for a court to apply another state's law? Keep
in mind
that there really are two issues here: The reasons another state's law
applies to the facts of the case and, if there are such reasons, the
further reasons
that
the court would take jurisdiction over the case, rather than simply
dismissing
it so it can be brought in the state whose law should be applied. Why
shouldn't
civil cases be treated like criminal cases, where the only question is
jurisdiction, and once the court takes jurisdiction it always applies
its own
law?
2) Forum shopping is a problem not simply because states have different
laws.
After all, if each court approached choice of law questions the same
way, the
variety of states' laws would not motivate forum shopping because each
forum
would always choose the same state's law. Forum shopping is a
temptation
because states have different choice of law approaches. Is the fact
that there
are different choice of law approaches fundamentally unfair? If the law
that
applies to one's activities depends upon where the activities will
subsequently
be litigated (something one cannot always foresee), isn't a fundamental
principle
of the rule of law - that people be able to know what the law requires
of them
- violated?
3) What is a court's obligations concerning choice of law? One theory
is that a
court merely has the discretion to apply another state's law.
Indeed the
legal realists took this point even further and argued that the law
that is
applied is never foreign law, but always the law of the forum.
On the other hand, the vested rights approach took
all
courts to have a pre-existing obligation to apply a particular state's
law. The
plaintiff's right vested at the time of the event being adjudicated and
the
relevant state's law was bound up with that right. A court that refused
to
apply the relevant state's law was violating its obligations. When the
plaintiff comes to that court, he is suing on that pre-existing right,
not
asking the court to make up a right by deciding which state's law to
apply.
Which approach makes the most sense? If you have problem getting your
mind
around the vested rights approach, consider the following analogy in a
domestic
situation. Let's say that D punches P in state A. Both P and D live in
state A.
P sues D in state A, but the court decides to use state B's law.
Wouldn't one
argue that the court had violated its obligations? And wouldn't we
put
this point the way the vested rights theorists did - P's right vested
at the
time he was punched and A's law was bound up with that right. If A’s
courts
refused to apply A's law they are violating their obligations. When P
comes to such
a court, he is suing on a pre-existing right, not asking the court to
make up a
right by deciding which law to apply.
If vested rights theory makes sense in a fully domestic situation, why
shouldn't
it make sense in an interjurisdictional situation? Or, alternatively,
if the
legal realist approach is correct, mustn't one conclude that even in
our fully
domestic situation P has a right only when the court chooses what law
to apply?
4) How far can one answer choice of law questions by appealing to a
principle
of territoriality? Isn't the problem with a case like Carroll (and all
interesting choice of law cases) that the events being litigated
occurred in
more than one territory? If Alabama law is applied in the Carroll case,
it may
be that Alabama is reaching out to determine the legal effects of
events in
Mississippi in violation of the principle of territoriality, but isn't
the same
thing true if Mississippi law is applied? Didn’t the negligence at
issue in the
case occur in
5) Is it at all relevant where the last event necessary to establish
liability
occurred? True, there would have been no tort without harm and the harm
occurred in
6) Doesn't the principle of territoriality really argue that
7) The traditional place of the wrong approach to torts, as expressed
in the
First Restatement, is still in use in some states (including
a) What if Carroll had fallen in
b)
What if the Carroll's wife, who lives with Carroll in
c)
Assume the plaintiff is poisoned by the defendant in
Alabama,
gets sick in Mississippi, and dies in Louisiana. What state's law
applies for a tort
action against the defendant? Why?
d) D, in Mississippi, makes material misrepresentations by phone to P
in Alabama.
In reliance upon these representations, B sends goods from Alabama to
D, in Mississippi. D
keeps the goods. P sues D for fraud (a tort). Which law applies?
e) D, broadcasting in Alabama, slanders P. The broadcast is heard in
Mississippi and Louisiana. P has a good reputation in both states,
which is affected. Which state's
or states' law applies?
f) By the law of
g) By the law of
h) Why is the defendant not liable in the Sheer v. Rockne Motors case - see question 5(b)? What’s the difference between that case and the following, where the First Restatement accepts that there is liability?
A in state X
employs B to operate his truck in state Y. In the course of the day's
driving,
B drives several miles out of his way on a personal errand, during
which time
he negligently leaves the truck insecurely parked on a hill. The truck
starts
down hill and after crossing the state line from Y into Z, crashes into
C's
automobile and demolishes it. Under the laws of X and Y, B was on
a frolic of his own and outside the scope of his employment; under the
law of
Z, B was acting within the scope of his employment. A is liable to C.