JURIST Guest Columnist Kenneth S. Gallant of the University of Arkansas at Little Rock William H. Bowen School of Law says that the incidences of documented and alleged child abuse by scoutmasters in the Boy Scouts of America provide a vivid illustration of why some conflict of laws doctrines are untenable and should be abandoned…

When the disturbing reports of sexual abuse of children by scoutmasters for the Boy Scouts of America (BSA) were released, the phrase “conflict of laws” is probably not the first thing that came to the minds of the public. The files, released on October 18, 2012, and detailing activity from 1958 through 1985, showed a pattern of private measures taken to prevent abuse — including public cover ups — that were often ineffective even in cases where the evidence of sexual abuse was extremely strong.

Upon hearing of this, I thought of conflict of laws issues because I recently covered the infamous Schultz v. Boy Scouts of America, Inc. case in my Conflict of Laws class. Schultz involved the sexual abuse of two boy scouts on a trip from New Jersey to New York by a scoutmaster who had previously been accused of child sexual abuse.

This case perpetuated one of the more pernicious distinctions in conflict of laws — that between “conduct regulating” rules and “loss distribution” rules. Because it is usually held that loss distribution rules are of most concern to the state(s) where the parties live, not the state where the tortuous conduct occurs, this distinction often prevents the use of tort law to deter conduct which the state has a legal right and a moral duty to deter.

In Schultz, the New York State Court of Appeals held that the BSA was not liable for its alleged negligence in employing the scoutmaster. At the time, New York law allowed this suit, even against a charitable corporation. However, New Jersey, where the boy scouts lived and the BSA had its home office, had a “charitable immunity” rule which barred lawsuits against charitable organizations. The court held that charitable immunity, or its absence, is a loss distribution rule, not a conduct regulating rule, meaning that the law of the domicile state of the parties (New Jersey) applied, thus barring the lawsuit against the organization.

This is perhaps the easiest case to show why the conduct regulating/loss distribution distinction is incoherent. If New Jersey’s charitable immunity rule is loss distributing — because you take your lumps when you deal with a charity — then New York’s law clearly is conduct regulating. The New York law encourages everyone to be careful in their New York activities — in this case, by imposing liability for negligently employing a volunteer scoutmaster previously alleged to have molested children. This is conduct regulating; it deters and prevents bad conduct by volunteers, by compelling charities to take care whom they employ.

This is the structure of most of the so-called “loss distribution” rules which have troubled conflict of laws doctrine at least since the 1950’s — so-called automobile “guest statutes,” spousal and other family immunities, etc. In the version of the law without the immunity or limitation of liability, one simply has a general regulation of conduct enforced by a right of compensation. The discussion in the cases about whether loss distribution or conduct regulation predominates is, thus, nonsense.

The purpose of having a general tort law in the place the bad conduct or the injury occurs is to deter the conduct and/or prevent the injury. Anyone acting, or causing or allowing acts to be done there, is on notice that the law applies to him or her. The rule applying it should be certain, and not depend on the forum in which the case is heard. Boy scouts — even those who come from New Jersey — should get to rely on New York law requiring the BSA to exercise the same care as everyone else. That ought to be that, under any sensible system of conflict of laws.

Refusing to use this insupportable distinction does not always lead to an easy answer in the converse case: when the place where the wrongful act or injury occured has special immunity law, while the home places of the parties do not. In Haumschild v. Continental Casualty Co., the place of the accident had interspousal immunity, while the home of the parties allowed suits by negligently injured persons, whether or not they were married to the tortfeasor. Yet even here, the question of whether these are conduct regulating or loss distributing rules makes very little sense.

The two real options have nothing to do with conduct regulation versus loss distribution. In the first possible choice, we use the traditional view that the law of the place of injury defines the rights which arise there. In the second, the law of the home of the parties creates a relationship of duty between them such that the parties are entitled to greater protection, even when the law of the place of the injury does not.

My instinct is that there are relationships of trust created by many of these laws. A spouse or parent owes no less care to a family member than to anyone else; also, if we entrust our children to the BSA in New York, that entity will owe them no less duty if they go to another state which has charitable immunity. For reasons too long to go into here, this may not be a conclusive argument. But it is enough to show that the real question has nothing to do with loss allocation versus conduct regulation. It has to do with whether the purposes of the law allow or require applicability to a given situation.

Finally, this discussion should put to bed another constantly repeated bromide of conflict of laws: that the predictability and uniformity of result in tort cases does not matter that much, because nobody plans for accidents. This is simply false. The entire casualty insurance and consumer safety industries are built on the fact that we do plan for accidents. Defensive driving, wearing seat belts in the car, wearing protective equipment at work, and many other everyday actions are based on planning for accidents.

And worst, many torts, like those committed by the scoutmaster in Schultz, are not accidents. Tort law, like criminal law, should be allowed to deter potential offenders, no matter where they are from. The positive response of the BSA to the recent disclosures shows us that the Boy Scouts, at least, plan to deter and prevent these acts.

Kenneth Gallant is a Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. He teaches criminal law, international law, conflict of laws and lawyering skills. Before entering teaching, he served first as a prosecutor and later as Attorney-in-charge for Special Litigation with the Office of the District Attorney of Philadelphia. He has published extensively in the area of international law.

Suggested citation: Kenneth S. Gallant, The Boy Scouts and Conflict of Laws Doctrines, JURIST – Forum, Oct. 29, 2012, http://jurist.org/forum/2012/10/kenneth-gallant-boy-scouts.php.