Questions on the Substance/Procedure Distinction
1) Imagine that a case with the same facts as
McAuliffe had been brought in Nevada
state court (don’t worry about how the court got personal jurisdiction
action against a California
estate concerning a car accident in Arizona).
Whose law on survivorship would then apply, if the reasoning in Grant
2) Characterization aside, why might it make sense
to apply California
law given the facts in Grant? What are the interests that California
and Arizona have in the
application of their respective laws?
3) Setting aside the distinction between substance
procedure as an escape device, it is clearly crucial to have a workable
distinction between the two, since even under modern approaches to
law generally the procedural law of the forum applies. What do you
think of the
criteria offered in pages 51-55 (in both the 7th and 8th eds.)?
4) How do you think the First Restatement deals
following case: P is injured by D in Massachusetts.
P sues in New Hampshire.
law, P must show lack of contributory negligence. Under New
Hampshire law, D has the burden of proof on
Which law applies?
5) How do you think the First Restatement deals
following case: P ships goods in Massachusetts
using D as transport. P received printed bill of lading which contains
limitations on liability. Under law of Massachusetts,
this bill of lading is not sufficient to show that P assented to the
Under the law of New Hampshire,
it is sufficient. P sues D in New Hampshire.
Should the court assume P assented to the limitation?
P is suing D in Louisiana
for negligently inspecting the connections between two railcars in Alabama.
The railcars decoupled in Mississippi, injuring P. Under the law of Mississippi,
non-negligence in inspecting railcars requires that they be checked
Under Alabama law,
requires that they be checked twice. Under Louisiana
law, non-negligence requires that they be checked three times. Under Mississippi
law one must provide at least one witness to prove negligence. Under Alabama
law one must provide two witnesses. Under Louisiana
law, three. Under the First Restatement how many times must P show D
the links to prove him non-negligent? Under the First Restatement how
must P offer to show that D was negligent?