More questions on characterization:
1) Characterization is not just an "escape device," that is a means
by which the court avoids the obvious 1st Restatement conclusion in
order to
arrive at a conclusion that seems more intuitive. It is also
necessary to
come to any conclusion under the 1st Restatement, since a cause of
action must
be characterized as tort, contract, etc., in order to apply the 1st
Restatement’s
rules.
2) In the Caldwell
case (on p. 45 in both the 7th and 8th eds.), there are two
characterization problems. The first is
whether
the action is tort or property. The second is whether, if it is
property, it is
about the property right of drainage on Arkansas
land or the right to dam on the Louisiana
land. This second problem is sometimes known as secondary
characterization. How
can these questions of secondary characterization be answered?
3) Consider the interests of the states involved
in Caldwell.
Is Louisiana interested
in protecting Arkansas
property
owned by Arkansans from being flooded by Louisianans from their Louisiana
property? Is Arkansas
really
interested in protecting the damming opportunities of Louisiana
property owned by Louisianans even though this means Arkansas
property owned by Arkansans will be flooded?
4) One case mentioned in Haumschild is a California
case – Emery v Emery – in which a California
court chose to apply California
law (the law of domicile) on facts similar to Haumschild’s. Emery is
evidence
of a change in views of choice of law and so supports the choice of the
law of
the domicile (Wisconsin)
in
Haumschild. But given that Haumschild is about the choice between Wisconsin
and California
law, how might it be understood to argue even more strongly that California
law is not applicable?