Law School Resources

Conflict of Laws

I. Introduction

A. The Nature of the Subject – Conflict of laws concerns the issues that arise from a dispute’s having contact with more than one sovereign.

B. The Scope of the Topic

1. Jurisdiction over the person or property: this topic is covered in AL civil litigation.

2. Choice of Law

a) *Interstate (and international) choice of law – choose b/w laws of 2 co-equal sovereigns.

b) Choosing b/w federal and state law – this topic is covered in Civ Pro and Con Law (Erie doctrine and supremacy clause).

3. Recognition of foreign Judgments – when one state/country enters judgment, to what extent will other states/countries recognize it.

II. Choice of Law – Introduction and Constitutional Limits on Choice of Law Decisions

A. Introduction to Choice of Law – when a court hears a case that involves parties from or activities in more than one state, it must decide which state’s law to apply.  To make that decision, it applies the choice of law doctrine of the state in which the court sits.

B. Constitutional Limits on Choice of Law Decisions

1. Applicable Constitutional Provisions

a) Due Process (No State shall “deprive any person of life, liberty, or property without DP of law”) – applicable to the choice of law context b/c choice of law is regulated by DP.

b) Full Faith and Credit (“Full faith and credit shall be given in each State to the public Act, Records, and judicial proceedings of every other State.”)  Requires each state in the US to recognize decisions of all other states (more than just judgments).

2. Early Cases – tests for DP and FF&C have been abolished in favor of modern tests.

3. Current test: chosen state must have a significant contract or aggregation of contracts, creating state interests, such that choice of law is neither arbitrary nor fundamentally unfair.

a) There are constitutional limits on a state’s ability to determine which state’s laws to apply, but this test is pretty lenient.

b) Application of a particular statute’s law is constitutional if

(1) There is contact b/w the state and the case and

(2) Those contacts must create an interest in the case.  The test will often permit any number of state law to apply.  Usually only will apply when state’s apply their own law to a case touching many states.  (even then, probably okay)

III. Choice of Law Theories (Analytical Approaches)

A. The Array of Theories: see below

B. The Traditional First Restatement Approach: “Vested Rights” and Territoriality – still used in a handful of states, including AL.  Use choice of law on all substantive issues.

1. The Concept: we view a state’s or country’s law as applying only within that state/country’s boundaries.  Otherwise, we apply the law of the state where the COA came into existence.  Look for the last even that occurred in regard to the COA: that is the state whose law applies.