Questions on the Substance/Procedure Distinction


1) Imagine that a case with the same facts as Grant v. McAuliffe had been brought in Nevada state court (don’t worry about how the court got personal jurisdiction for an action against a California estate concerning a car accident in Arizona). Whose law on survivorship would then apply, if the reasoning in Grant is correct?


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 and procedure as an escape device, it is clearly crucial to have a workable distinction between the two, since even under modern approaches to choice of 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 with the following case: P is injured by D in Massachusetts. P sues in New Hampshire. Under Massachusetts law, P must show lack of contributory negligence. Under New Hampshire law, D has the burden of proof on this matter. Which law applies?


5) How do you think the First Restatement deals with the 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 limitation. Under the law of New Hampshire, it is sufficient. P sues D in New Hampshire. Should the court assume P assented to the limitation?


6) 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 only once. Under Alabama law, non-negligence 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 inspected the links to prove him non-negligent? Under the First Restatement how many witnesses must P offer to show that D was negligent?