When thinking about the Carroll case and the study
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
courts to have a pre-existing obligation to apply a particular state's
plaintiff's right vested at the time of the event being adjudicated and
relevant state's law was bound up with that right. A court that refused
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,
asking the court to make up a right by deciding which state's law to
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.