Conflict of Laws Q

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flcath
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Conflict of Laws Q

Postby flcath » Wed Jul 18, 2012 1:38 pm

Is the procedure/substance distinction used in Conflicts (a course I've never taken) identical to the one in Erie?

For example, State X has a provision that says that if an offer of judgment (Rule 68) is made and rejected, and the offeree doesn't get a better verdict from trial, then the offerree owes the offeror costs and attorneys' fees. This is different from the federal R. 68, and the law of State Y.

I now have a case where State Y's substantive law will control a case tried here in forum State X. There is decent (inconsistent and unclear, but at least plentiful) case law on the application of this provision in diversity suits (i.e., federal court trying a case with state substantive law), but not in my exact situation.

So my Q is, if a provision has been designated "substantive" for the purposes of Erie (and resultantly applied by federal couts sitting in diversity), will that provision necessarily be "substantive" for purposes of conflicts (and resultantly applied by a forum state court applying another state's law)?
Last edited by flcath on Thu Jul 19, 2012 12:07 am, edited 1 time in total.

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I.P. Daly
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Re: Conflict of Laws Q

Postby I.P. Daly » Wed Jul 18, 2012 3:03 pm

flcath wrote:Is the procedure/substance distinction used in Conflicts (a course I've never taken) identical to the one in Erie?

For example, State X has a provision that says that if an offer of judgment (Rule 68) is made and rejected, and the offeree doesn't get a better verdict from trial, then the offerree owes the offeror costs and attorneys' fees. This is different from the federal R. 68, and the law of State Y.

I now have a case where State Y's substantive law will control a case tried here in forum State X. There is decent (inconsistent and unclear, but at least plentiful) case law on the application of this provision in diversity suits (i.e., federal court trying a case with state substantive law), but not in my exact situation.

So my Q is, if a provision has been designated "substantive" for the purposes of Erie (and resultantly applied by federal couts sitting in diversity), will that provision necessarily be "substantive" for purposes of conflicts (and resultantly applied by a forum state court applying a rendition state's law)?


You'd need to look at case law in your jurisdiction. State substantive law for purposes of the Erie doctrine includes all matters that "materially affect" the outcome of the litigation regardless of whether those matters are "substantive" or "procedural." Some matters that are considered "procedural" for conflicts purposes are considered "substantive" for Erie purposes. (E.g., although tolling of the SOL is "procedural," it has been held to be outcome determinative, and thus "substantive" for Erie purposes. Ragan v. Merchants Transfer & Warehouse Co.)

flcath
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Re: Conflict of Laws Q

Postby flcath » Wed Jul 18, 2012 3:28 pm

I.P. Daly wrote:You'd need to look at case law in your jurisdiction. State substantive law for purposes of the Erie doctrine includes all matters that "materially affect" the outcome of the litigation regardless of whether those matters are "substantive" or "procedural." Some matters that are considered "procedural" for conflicts purposes are considered "substantive" for Erie purposes. (E.g., although tolling of the SOL is "procedural," it has been held to be outcome determinative, and thus "substantive" for Erie purposes. Ragan v. Merchants Transfer & Warehouse Co.)

Ty for the response.

Unfortunately, my jurisdiction doesn't have case law. (There is nothing on point for anything, ever.) I thought that the SoL thing wasn't an "example" of SCOTUS doing that, but rather the one and only instance of that happening. Right? Because they uphold the federal SoL rule (and Rules are only upheld if they're procedural, post-Hanna), but then say it'll just be the one procedural thing that won't apply in diversity suits.

I'm just wondering, since there's a paucity void of case law from my state, if analogizing from Erie cases on point is even the right way to be researching this. I've literally been leafing though the f-ing Restatement on Conflicts for the last hour.

Geist13
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Re: Conflict of Laws Q

Postby Geist13 » Wed Jul 18, 2012 8:34 pm

Haven't taken conflict, am very familiar with Erie though. I would only make that sort of analysis if there is precendent in the jurisdiction for doing it that way. Erie is informed by very specific concerns and statutes that are particular to federal courts (rules enabling act, supervening federal interests etc. etc.). So unless you have some reason to think that the local courts generally inform their choice of law analysis by borrowing from erie, there really is not justification for thinking they should do so. Even in Erie, substance and procedure have different meanings in different contexts (rules of decision act. v. rules enabling act), so there is little reason to think that you can just apply an erie definition (which has to do with vertical choice of law) to the horizontal choice of law analysis.

Again, I have not taken conflicts, but just borrowing from Erie without precedent for doing so would strike me unwise.

edit: if you can't find any cases on point, how have the local court's analyzed similar types of choices of law in the past? Are there analytical themes they apply? Have they traditionally been more hostile to the laws of the state in question? I think you'd be on much stronger ground analogizing from other local precedents than analogizing from the erie doctrine.

flcath
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Re: Conflict of Laws Q

Postby flcath » Wed Jul 18, 2012 9:55 pm

Geist13 wrote:edit: if you can't find any cases on point, how have the local court's analyzed similar types of choices of law in the past? Are there analytical themes they apply? Have they traditionally been more hostile to the laws of the state in question? I think you'd be on much stronger ground analogizing from other local precedents than analogizing from the erie doctrine.


That's what I'm starting to think, too. Can you think of any other contentious substance/procedure things that different jurisdictions handle differently, though? (Right, because that's what I'd need, to make the shaky-as-hell "State X will likely apply its own Rule 68 provision to this case, because THEY JUST LOVE APPLYING THEIR OWN PROVISIONS, when compared to other states" argument.) I feel like the SoL is the other big one, and everybody seems to follow the federal gubmint there.

Also my current state has so little law it's not even funny. No intermediate appellate courts (the justices of the SC are the state's only appellate judges), and yet they still give an appeal-of-right (which is not constitutionally required). Result = the SC spends its time (1) correcting flat-out mistakes of the trial courts, and (2) hearing 87, 943,217,464 criminal appeals.
Last edited by flcath on Wed Jul 18, 2012 10:00 pm, edited 1 time in total.

flcath
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Re: Conflict of Laws Q

Postby flcath » Wed Jul 18, 2012 9:59 pm

I should add that the partner handed me this and was like "check on this, I'm sure we apply our own law since it's procedural . . . should take about an hour." This was after I had to ask him what an Offer of Judgment was (I just didn't remember the term; I remembered the concept).

FWIW, I agree with him. I can't believe courts don't uniformly consider this to be procedural. I could see if a specific law (like civil rights claims, or Keep Our State Clean & Beautiful Act claims) gave atty's fees as a component of damages, saying that was substantive, but a general offer of judgment provision is *clearly* designed to force ppl to settle.

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vamedic03
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Re: Conflict of Laws Q

Postby vamedic03 » Wed Jul 18, 2012 10:12 pm

It's a touch call. Generally under substantive/procedure distinction under the 1st Restatement roughly parallels Erie. But it's not precise - the three major areas that are "unexpectedly" procedural under 1st Restatement Conflicts are statutes of limitations, damages, and burdens of proof. If it's a 2d Restatement or Governmental Interests Analysis state, then it can be a bit more complicated.

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vamedic03
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Re: Conflict of Laws Q

Postby vamedic03 » Wed Jul 18, 2012 10:23 pm

flcath wrote:
Geist13 wrote:edit: if you can't find any cases on point, how have the local court's analyzed similar types of choices of law in the past? Are there analytical themes they apply? Have they traditionally been more hostile to the laws of the state in question? I think you'd be on much stronger ground analogizing from other local precedents than analogizing from the erie doctrine.


That's what I'm starting to think, too. Can you think of any other contentious substance/procedure things that different jurisdictions handle differently, though? (Right, because that's what I'd need, to make the shaky-as-hell "State X will likely apply its own Rule 68 provision to this case, because THEY JUST LOVE APPLYING THEIR OWN PROVISIONS, when compared to other states" argument.) I feel like the SoL is the other big one, and everybody seems to follow the federal gubmint there.


Well, SoL are procedural under conflict of laws. But, many states have enacted borrowing statutes where (for certain causes of action) they will borrow the sister state whose substantive law they are applying if those SoL are shorter. But, not all states have done so and many states apply sister state SoL that are longer than their own.

flcath
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Re: Conflict of Laws Q

Postby flcath » Wed Jul 18, 2012 10:25 pm

vamedic03 wrote:It's a touch call. Generally under substantive/procedure distinction under the 1st Restatement roughly parallels Erie. But it's not precise - the three major areas that are "unexpectedly" procedural under 1st Restatement Conflicts are statutes of limitations, damages, and burdens of proof. If it's a 2d Restatement or Governmental Interests Analysis state, then it can be a bit more complicated.

Tyty. I will look at how my state handles those areas. Hopefully there's a distinctive "AHA!" pattern that I can say will likely carry over to Rule 68. (Lol, who am I kidding, they've probably never ruled on any of those.) Otherwise I will literally end up writing a memo that takes no side whatsoever.

Against my usual TLS demeanor, I am Mad As Fuck ITT.

flcath
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Re: Conflict of Laws Q

Postby flcath » Wed Jul 18, 2012 10:29 pm

vamedic03 wrote:Well, SoL are procedural under conflict of laws. But, many states have enacted borrowing statutes where (for certain causes of action) they will borrow the sister state whose substantive law they are applying if those SoL are shorter. But, not all states have done so and many states apply sister state SoL that are longer than their own.


I saw this in the 2d Res. of Conflicts, and I thought I must be misreading it. So basically states with long SoLs are asking to become giant fallback forums for other states' laws.

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vamedic03
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Re: Conflict of Laws Q

Postby vamedic03 » Wed Jul 18, 2012 10:34 pm

flcath wrote:
vamedic03 wrote:Well, SoL are procedural under conflict of laws. But, many states have enacted borrowing statutes where (for certain causes of action) they will borrow the sister state whose substantive law they are applying if those SoL are shorter. But, not all states have done so and many states apply sister state SoL that are longer than their own.


I saw this in the 2d Res. of Conflicts, and I thought I must be misreading it. So basically states with long SoLs are asking to become giant fallback forums for other states' laws.


If they haven't enacted a borrowing statute, then yes. Litigants have filed a tort suit in a state without a borrowing statute where the applicable substantive law is from a state where the SoL has run out in a federal court. The plaintiffs have then transferred venue back to the sister state where the SoL have already run. But, because the federal courts apply the choice of law rules of the transferror forum, the transferee federal court had to apply the longer SoL to the action.

FYI - be careful in which restatement you use - you have to make sure that you use the appropriate restatement for a given forum. Some states are 1st restatement, others are government interest analysis, others are 2d restatement, and others follow different rules for different causes of action.

crossem
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Re: Conflict of Laws Q

Postby crossem » Wed Jul 18, 2012 10:57 pm

Sorry to intrude, but can someone tell me how worthwhile this class is? I can't even find anyone who has taken it.

It seems like it would only be useful for biglaw types and not so much whatever small law I'll be doing in a flyover state. But, I don't know.

Thanks!

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vamedic03
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Re: Conflict of Laws Q

Postby vamedic03 » Wed Jul 18, 2012 11:05 pm

crossem wrote:Sorry to intrude, but can someone tell me how worthwhile this class is? I can't even find anyone who has taken it.

It seems like it would only be useful for biglaw types and not so much whatever small law I'll be doing in a flyover state. But, I don't know.

Thanks!


If you're going to litigate, you will need conflicts. Probably useful for non-litigators too. Conflict of laws issues can arise: whenever there is an out of state party, whenever part of a contract involved someone out of state or out of state performance, out of state torts, etc.




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