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?