The Place of the Wrong : Torts and the Conflict of Laws

In an article published in 1951, a well-known English authority on conflict of laws remarked, To a foreign observer, it seems extraordinary that there should be so much uncertainty in the United States as to what law governs the validity of a contract, and so much uncritical acceptance of the rule that tort liability is governed by the law of the place of wrong. \u27 The writer was referring, of course, to the rule embodied in the Restatement of Conflict of Laws, according to which the place of the wrong is that place where the tortious conduct of the defendant has its impact on the injured person or property The Restatement rule is undoubtedly supported by most respectable authority. It is also the rule which has been the most often resorted to by American courts when they have had occasion to deal with foreign torts. However, any open minded observer would be compelled to concede that its strict application has at times brought about somewhat strange results

Foreign Ex Parte Divorces and Local Claims to Alimony

It will be recalled that in Williams v. North Carolina, the Supreme Court of the United States held that the fact of domicile as a jurisdictional factor for divorce may be questioned abroad when the matter of full faith and credit is in issue there. On the same day that this case was decided, a majority of the Court arrived at the same conclusion in the case of Esenwein v. Commonwealth of Pennsylvania. Except for the concurring opinion of Justice Douglas, the Esenwein case would have no particular significance. The background facts were similar to those in the second Williams case. The husband and wife had lived in Pennsylvania. The husband secured a Nevada divorce without, so it was contended, acquiring a domicile in that state. However, the question to be decided was whether the divorce superseded a pre-existing support order granted the wife in Pennsylvania after the separation of the couple and some time before the husband\u27s departure for Nevada, rather than, as in the Wililams case, one of liability to criminal prosecution for bigamous cohabitation of a spouse who had secured a divorce in a state where he had not acquired a domicile. To a majority of the Supreme Court the rationale of the Williams case applied. The Nevada decree was not entitled to full faith and credit. As a consequence, the decision by the Pennsylvania courts that the support order had not been superseded by the Nevada decree was upheld. To Justice Douglas, who it might be noted joined in the dissent in the second Williams case, the matter involved was quite different. He would have required that the Nevada decree be given full faith and credit insofar as the respective personal marital duties of the spouses might be concerned but not insofar as interspousal property claims (including a prior support order) might be involved. The matter came befor

The Migratory Divorce

If, no matter what the reason for the migration, the spouse who has obtained the foreign decree returns to his usual abode, a court there may be confronted with the problem of the local effect of the decree. The problem is one which has been with us with varying degrees of intensity since almost the very formation of the American Union

Commercial Paper and the Conflict of Laws

Certificates of stock, bonds and other negotiable paper are apt to be regarded by business men as the equivalents of tangibles and, so, are normally dealt with by them as such. Nevertheless, stock certificates and negotiable paper represent intangibles. A stock certificate, for example, represents a share in the corporation. The owner of the share has a number of inchoate claims which are not always susceptible of exact delineation. Theoretically the owner is entitled to his proper share of the balance remaining on hand after discharge of obligations upon the dissolution of the corporation. He is also entitled to dividends; if earned, and may, depending on the character of his stock, participate in the selection of corporate directors. Bonds and other negotiable paper are likewise evidence of intangibles, namely, the primary or secondary obligations of those whose names are attached to the paper to pay the amounts designated therein. Even a bill of lading or a warehouse receipt is not a full substitute for the tangible which it represents. It merely creates a duty on the part of a carrier or warehouseman to deliver on presentment of the paper. If the paper is negotiable or seminegotiable the person to whom it has been issued may transfer to another by some designated manner a similar right to delivery. However, whatever wishful thinking there may be, the paper never becomes the full equivalent of the goods deposited or shipped. At most it creates a limited right to delivery. Its negotiability creates a power to destroy by negotiation the claims of certain individuals to delivery and to convey to another the right to possession. In the field of Conflict of Laws courts have tended, on the whole, to emphasize the thesis that stock certificates and negotiable paper constitute no more than evidence of intangibles and so have tended to deal with problems concerning them as problems concerning the intangibles which they represent