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Nova Law Review 21, 3 Nova Law Review Volume 21, Issue 3 1997 Article 1 Nova Law Review 21, 3 ∗ ∗ Copyright c 1997 by the authors. Nova Law Review is produced by The Berkeley Electronic Press (bepress). https://nsuworks.nova.edu/nlr : Nova Law Review 21, 3 Published by NSUWorks, 1997 1 NOVA LAWNova Law Review,REVIEW Vol. 21, Iss. 3 [1997], Art. 1 VOLUME 21 SPRING 1997 NUMBER 3 TABLE OF CONTENTS ARTICLES Conflict of Laws in Florida: The Desirability of Extending the Second Restatement Approach to Cases in Contract ................. HaroldP. Southerland 777 Qui Tam: Blowing the Whistle for Uncle Sam ............................... Anna Mae Walsh Burke 869 NOTES AND COMMENTS Immigration Reform: Congress Expedites Illegal Alien Removal and Eliminates Judicial Review from the Exclusion Process ............................................................................................................PaulS. Jones 915 The Tangled Web We Weave: The Internet and Standing Under the Fourth Amendment ...................................................................... Brian L Simon 941 Temporary Immunity: Distinguishing Case Law Opinions for Executive Immunity and Privilege as the Supreme Court Tackles an Oxymoron ......................................................................... Glenn Todd Williams 969 Cumulative Index ................................................................................................................ 1019 https://nsuworks.nova.edu/nlr/vol21/iss3/1 2 : Nova Law Review 21, 3 Conflict of Laws in Florida: The Desirability of Extending the Second Restatement Approach to Cases in Contract Harold P. Southerland* TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 777 lI. FROM TERRITORIAL TO POLICY ANALYSIS: THE ROAD TO THE SECOND RESTATEMENT OF CONFLICT OF LAWS .................... 783 A . M illiken v. Pratt .................................................................. 784 B. Lilienthal v. Kaufman ......................................................... 797 III. THE SECOND RESTATEMENT OF CONFLICT OF LAWS AND ITS APPROACH TO CASES IN CONTRACT ............................................. 812 IV. TEMPERAMENT AND ATITUDE IN THE FLORIDA SUPREME COURT'S DECISION MAKING IN CHOICE-OF-LAW CASES ............. 831 V . CONCLUSION ................................................................................. 851 I. INTRODUCTION For roughly a century and a half in United States legal history, territo- rial theory supplied largely uncontroversial solutions to problems in choice- of-law. For torts, it was the law of the place of injury; for contracts, the law of the place where a contract was made or was to be performed. Disputes involving real property were uniformly referred to the law of the state in which the property was situated, and those involving personalty to the law of the state where the owner was domiciled. So sovereign-seeming were the states of the United States during this period that these handful of simple rules had about them the aura of ineluc- tability. Each state had its own distinct legal system, absolute within its territorial boundaries. These systems had much in common, but there were differences, often significant ones, and when these differences came to focus in the occasional conflict-of-laws case, it seemed natural to resolve them by reference to the law of.the state where legally significant events occurred.! * Associate Professor of Law, Florida State University; J.D., University of Wisconsin 1966; B.S., United States Military Academy, 1956. 1. See, e.g., Harold P. Southerland & Jerry J. Waxman, Florida'sApproach to Choice-of- Law Problemsin Tort, 12 FLA. ST. U. L. RFv. 447,453-55 (1984). Published by NSUWorks, 1997 3 Nova Law Review, Vol. 21, Iss. 3 [1997], Art. 1 Nova Law Review [Vol. 21:777 The only debatable question-usually more of theoretical than practical importance-was why, exactly, a court with complete power to decide a case would use another state's law rather than its own. To Joseph Story, who spoke for the nineteenth century, the answer lay in comity-the deference and respect that one sovereign state owed to the law making power of another.2 To Joseph Beale, who tried to cement territorial theory for all time in the 1934 Restatement of Conflict of Laws, the answer was one of obliga- tion. One state applied the laws of another because it had to. Legal rights and liabilities came into existence in the first instance only by virtue of the law of some place; once created under that law, they were fixed and could thereafter be enforced in some other place only in the form of their creation.3 Real dissatisfaction with territorial principles began to manifest itself in the first third of this century.4 " Against a backdrop of monumental change in the larger society, territoriality and the results it dictated grew increasingly unpalatable to judges striving to do justice in individual cases and no longer overawed by notions of sovereignty.5 The result was the well known and still on-going choice-of-law revolution-a pattern of decision making in which territorial rules were first avoided and then gradually, starting in the 1960s, rejected outright in a growing number of states for one or another of 2. See J. STORY, COMMENTARIES ON THE CONFLICT OF LAWS §§ 23-25, 32-38 (photo. reprint 1972) (1st ed. 1834). 3. See 3 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS § 71, app. at 1964-65 (1935); see also ROGER C. CRAMTON ET AL., CONFLICT OFLAWS 8 (3d ed. 1981): Mr. Justice Story's "comity" theory held that the forum was free to do as it wished; the forum, for reasons of practical convenience or moral obligation, might often permit foreign law to operate.... To Professor Beale and other vested-rights theorists, "comity" was a fighting word. The term itself implied that the court possessed an undesirable degree of discretion concerning the appli- cable law, and the principle violated their view of the territorial premise. Thus the vested-rights approach stressed a legal obligation to recognize rights based on foreign law: "A right having been created by the appropriate law, the recognition of its existence should follow everywhere. Thus an act valid where done cannot be called in question anywhere." Id (quoting BEALE, supra at 1969). 4. See, e.g., Walter W. Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L.J. 457 (1924); Ernest G. Lorenzen, Territoriality,Public Policy, and the Conflict of Laws, 43 Yale L.J. 736 (1924); Hessel E. Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L.J. 468 (1928). 5. See, e.g., Harold P. Southerland, A Screaming Comes Across the Sky--Tort Choice-of- Law Doctrine in Florida Under the Second Restatement of Conflicts, 40 MERCER L. REV. 781, 787-90 (1989). https://nsuworks.nova.edu/nlr/vol21/iss3/1 4 : Nova Law Review 21, 3 1997] Southerland 779 the so-called modem approaches. 6 So much has been made of this revolu- tion and the new learning it embodies that it is possible to lose sight of an important point. Most of the pressure for change was felt in just two areas- 7 in torts primarily and, to a somewhat lesser extent, in contracts. In all this, the Florida experience has been typical. Territorial theory fell as naturally to hand here as elsewhere, rationalized repeatedly in over a century's worth of opinions in the language of comity-a beneficial exercise in that deference and respect that one sovereign state owes the law-making power of another.8 In 1967, in a wrongful death case arising out of the crash of a commercial airliner,9 the Supreme Court of Florida moved to align itself with the modem approach for tort cases then being pioneered by the New York Court of Appeals, 10 but on rehearing, it reconsidered and reversed itself.1" Thirteen years later, in Bishop v. Florida Specialty Paint Co.,12 the court took this step. It discarded lex loci delicti, the inflexible place-of- injury rule, and replaced it with the most significant relationship approach of the Second Restatement of Conflict of Laws. After Bishop, it seemed probable that the venerable lex loci contractus doctrine for contracts cases would be the next to go, discarded and replaced with a modem approach, the obvious candidate being the Second Restatement. But when the opportunity squarely presented itself in 1988 in Sturiano v. Brooks, 3 the court declined to make the change. Sturiano involved an automobile insurance contract. The Sturianos, husband and wife, were lifelong residents of New York and had insured their 6. See, e.g., Harold L. Kom, The Choice-of-Law Revolution: A Critique, 83 COLUM. L. REv. 772, 802-20 (1983). 7. See, e.g., id. at 775-76. 8. See, e.g., Hertz Corp. v. Piccolo, 453 So. 2d 12, 16 (Fla. 1984) (Shaw, J., dissenting); Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 375 (Fla. 1977); Gillen v. United Serv. Auto. Ass'n, 300 So. 2d 3, 6 (Fla. 1974); Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743, 746 (Fla. 1967); Beverly Beach Properties, Inc. v. Nelson, 68 So. 2d 604, 609 (Fla. 1953); Markham v. Nisbet, 60 So. 2d 393, 394 (Fla. 1952); Kellogg-Citizens Nat'l Bank v. Felton, 199 So. 50, 54 (Fla. 1940); Beckwith v. Bailey, 161 So. 576, 581 (Fla. 1935); Hartford Accident & Indemnity Co. v. City of Thomasville, 130 So. 7, 8 (Fla. 1930); Mott v. First Nat'l Bank, 124 So. 36, 37 (Fla. 1929); Herron v. Passailaigue, 110 So. 539, 542 (Fla. 1926); Warren v. Warren, 75 So. 35, 44-45 (Fla. 1917); Walters & Walker v. Whitlock, 9 Fla. 86, 96 (1860); Perry v. Lewis, 6 Fla. 555, 559 (Fla. 1856). 9. Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla. 1967). 10. See Babcock v. Jackson, 191 N.E.2d 279 (N.Y. 1963); see also Southerland & Wax- man, supra note 1, at 536-42. 11. Hopkins, 201 So. 2d at 749. 12. 389 So. 2d 999 (Fla. 1980). 13. 523 So. 2d 1126 (Fla. 1988). Published by NSUWorks, 1997 5 Nova Law Review, Vol. 21, Iss. 3 [1997], Art. 1 Nova Law Review [Vol.
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