I thought I would say a bit more about my (partial) critique of Larry Kramer’s solution to the problem of unprovided-for cases, which I discussed in class. An unprovided-for case is one in which it looks as if neither state is interested in its law applying. An example is Neumeier. An Ontarioan, who was a guest in a New Yorker’s car, sues the New Yorker in New York state court for negligence in connection with an accident in Ontario. Ontario has a guest statute, which bars a guest from suing a host for negligence. New York doesn’t.
Kramer’s solution is to recognize that Ontario tort law, minus the quest statute, applies. In the absence of worries about fraud, Ontario’s deterrence and compensatory interest kick in and allow its tort law to govern the matter.
But there is a problem with this approach. Consider another example of an unprovided-for case—Grant v McAuliffe, with the facts changed somewhat. In the original Grant, two Californians get into a car accident in Arizona. One dies. In California court, the surviving Californian sues the estate of the dead Californian. Arizona, the place of the wrong, does not allow survivorship actions. California does. But assume instead that the plaintiff in Grant was from Arizona, the defendant and his estate was Californian, and the accident was in Arizona.
California is again not interested in its tort law applying. Arizona is arguably not interested in its law prohibiting survivorship actions applying, because such a law is protective of estates and the estate is Californian. But can we say Arizona is interested in a law allowing survivorship actions applying? The problem is that Arizona has no such law. In Neumeier, Ontario superimposed a guest statute upon normal negligence law, allowing negligence law to spring into action when the guest statute was removed. But Arizona is not superimposing a law prohibiting survivorship actions on preexisting law allowing such actions.
Can one say that Arizona officials would create such a law if they were confronted with the interstate scenario I described above—namely one in which Arizona has deterrence and compensatory interests and no Arizona estate to protect? The problem is that if one can say that, then one must also say that New York officials would have created a guest statute if they had thought about Neumeier—that is, a case in which New York has no deterrence and compensatory interests to overcome its worries about fraud. The proper result in Neumeier could be applying New York's hypothetical guest statute....