Pci - Week 4 : Choice Of Law And Pleadings

Front 1

Choice of Law

What are the two types?

Back 1

Horizontal and vertical

Horizontal - what US state's law applies

Vertical - whether state law of federal law will apply

Front 2

What choice of law rules will apply?

Back 2

The choice of law rules of the forum state will apply. Understand: This does not necessarily mean that the substantive law of the forum state will apply.

Front 3

For tort cases, how do we determine which state's law applies?

Back 3

Look to the Restatement 145

It sets out the most significant relationship Test. Most states and Texas follow the Restatment.

Does not mean you automatically get TX subst law. It means you get the law with the most significant relationship.

Front 4

What is the doctrine of lex loci delicti?

Back 4

It is an old doctrine that has been overruled. It says that the law of the state where the tort occurred applies. Today, the MOST SIGNIFICANT RELATIONSHIP test applies.

Front 5

What is the dissimilarity doctrine?

Back 5

It is an old doctrine that generally has been overruled. Under that doctrine, Texas courts were required to dismiss certain causes of action for want of jurisdiction when the tort laws of another forum were considered to be so different from those of Texas as to make it impossible for a Texas court to apply and enforce them. Rule today…

Front 6

What is the significance of procedural law v. substantive law?

Back 6

If it’s a procedural issue, the procedural law of the forum state applies.

Exception: If it is considered to be part of the substantive law of the other forum, it’s at least possible that Texas might regard it as substantive.

For example, the SOL can be considered substantive, depending on the particular cause of action and the state law at issue.

Front 7

What is the first step of a choice of law analysis in a tort case?

Back 7

RS § 6 – Does a statutory directive apply? (i.e. UCC) If so, apply it. In most situations, however, a statutory directive will not apply.

Front 8

If a statutory directive does not apply, what is the next step

Back 8

MOST SIGNIFICANT RELATIONSHIP .

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, &
(d) the place where the relationship, if any, between the parties is centered.

Are these factors listed in rank order of importance? No!
You can use all of them, specifically the ones that are most favorable to you.

Front 9

What is party autonomy?

Back 9

It means that in contract, the courts will generally give effect to the parties’ agreement on which state’s law will apply.

if the issue in the case is one that you coul have resolved in you Contrract, we will resolve the conflict of the contract based on you that COL.

If is is something like Capacity t(hat which could not be governed by the contract) we will still use your choice of law rules unless:
1. you choose the law of a state w/no relation to the dispute; or
2. It violatea fundamental public policy of the state.

Front 10

BUT what about an example of where the statutory provisions prevail?

Back 10

Tex Business and Commerce code says:

We will give you force adn effect to your COL clause but our willingness to do so is not unlimited.

Look closely at RS §187: If subsection (1) is satisfied, we don’t get to subsection (2). Thus, if the parties agree that the law of Hawaii will apply, and it’s an issue that they could have resolved by an explicit provision in their agreement, we’re done (even if Hawaii doesn’t have any relationship with the parties or the transaction).

If it’s an issue that they could not have resolved by an explicit provision in their agreement, we move to subsection AND STILL apply the parties' COL unless:
1. the state has no relation to the dispute; or
2. contravenes public policy