Conflicts of Law Outline

I. Traditional Approaches to Conflicts of Law

a. Traditional Theory- Territorial Approach (1
st
Restatement, eale, !ested
Ri"hts, le# loci$
i. %istory of Conflicts Law- %istorically (&uropean common law$
territorial approach was used ('ud"e (tory- 1
st
Restatement of
Conflicts$ currently, interest of states has e)ol)ed- dissatisfaction
with ri"idity.
ii. !ested Ri"hts Approach (eale$- locali*e e)ents of multi-state,
place in one state- +or a forei"n suit, althou"h the act complained
of had no force in the forum, it "a)e rise to an o,li"ation, which
follows the person, and may ,e enforced where)er the person may
,e found.
1. criticism- adopt the law of the forum.
-. .omestic rule of the forei"n state- when a forum case
comes to the forum, it should apply its own law ,ut adopt
and enforce as its own law a rule of decision identical, or
hi"hly similar to a rule of decision found in the system of
law in force in the other country or state
iii. .isad)anta"es- potential for ar,itrariness, in/ustice- why would the
forum e)er not apply their own life0
i). Tort- law of place where accident occurred
1. 1lace of wron"- use law of the state of conse2uences, not
ori"inal wron"3 ne"li"ence- where did the force impin"e on
his ,ody0
a. &ach state has le"islati)e /urisdiction to determine
the le"al effects of acts done or e)ents caused
within a territory.
,. Laws of the state are intended to possess an
e#clusi)e so)erei"nty and /urisdiction within its
own territory, and all persons who are resident
within it and contracts made and acts done within it.
c. Compensate 1 for the harm they suffered-
d. 1redicta,ility- protectin" reasona,le e#pectations of
the parties
e. 4niformity3 admnistera,ility
f. .iscoura"ement of forum shoppin"
-. 5here harm is done to the reputation of the person, the
place of wron" is where the defamatory statement was
communicated.
6. In)asion of pri)acy- law of the /urisdiction where 1 was
when his feelin"s were wounded.
7. &#ceptions to place of wron" test8
a. If the wron" depends on the application of the
standard of care, that standard should ,e ta9en from
the law of the place of the actors conduct
,. A person, re2uired, for,idden, or pri)ile"ed to act
under the law of the :place of actin"; should not ,e
held lia,le for conse2uences on another state.
<. 1ro,lems with Territorial Approach8
a. +i"ure out where the in/ury occurred- loo9 at
locali*in" e)ent- i.e reputation, trademar9, mass tort
case
,. 4nfairness potential- see Carroll
c. Characteri*ation3 escape de)ices
d. Ren)oi
=. Ala,ama >reat (outhern Railroad ). Carroll
a. Train was owned ,y AL corp, ne"li"ent inspection
in AL, Carroll is a resident of AL in/ured in ?(
,. AL- employer lia,ility- train was lia,le
c. ?(- fellow ser)ant rule- insulated employer from
lia,ility ,y other employee@s ne"li"ence
d. 1lace of in/ury rule- Carroll@s ri"ht to reco)ery
)ested at time of in/ury, therefore ?( law applies
). Contractin"
1. ?ili9en ). 1ratt
a. ?& partnership to purchase "oods, done in ?A and
mailed to ?&
,. ?A- married woman could not act as a "uarantor
c. ?& A allowed married women to act as a surety
d. %oldin" that contract was made in ?&- ,ecause of
dateline on contract, B was complete with receipt of
"uaranty
e. If a contract is completed in another state, it ma9es
no difference whether the citi*en of this state "oes
in person, sends an a"ent, or writes a letter, across
the ,oundary lines ,etween the two states.
-. 1lace of Contractin"
a. C611- 1lace of contractin"- principal e)ent
necessary to ma9e a contract occurs.
,. C61-- formal contract- effecti)e on deli)ery, place
of contractin" is where deli)ery is made
c. C6-6- Informal 4nilateral Contract- where the e)en
ta9es place that ma9es the contract ,indin"
d. C6-<- Informal ,ilateral contract- where second
promise is made in consideration of first promise
e. C6-=- Acceptance from one state another-
i. if acceptance is sent ,y an a"ent of the
acceptor, the state where the a"ent deli)ers it
ii. ,y other means- state from which
acceptance is sent.
f. C66-- !alidity and &ffect of the Contract-
.etermined law of place where contract was made
(capacity, necessary form, consideration,
re2uirements to ma9e a promise ,indin", time and
place where the promise is to ,e performed,
character of the promise$
". C6<D- 1erformance handled with place where
contract is to ,e performed (manner, time, locality,
people in)ol)ed, sufficiency, e#cuse for non-
performance$
h. (pecial rules for determinin" where contract is
made dependin" on what 9ind of conflict
6. 'ustifia,le &#pectations of parties8 enforcea,ility
)i. 1roperty
1. Law of the (itus-law of the place of the property is to
"o)ern as to the capacity of testator. Also determines
marria"e, property, mort"a"es, etc.
a. Immo)ea,les are of "reatest concern3 e#clusi)e
/urisdiction to the state in which they are situated.
Leaseholds are considered immo)ea,les.
,. 1ra"matic concerns- recordin" system for land
interests.
c. ?o)ea,les- law of the situs does not always
concern3 many e#ceptions.
i. At what moment in time is the situs
determined0
1. Time of possession
-. location durin" liti"ation so as to
a)oid forum shoppin"
d. .istri,ution ,etween spouses- place of where
marital domicile applies
-. In Re arrie@s &state
a. 1
st
Restatement puts a premium on characteri*ation-
real estate ). wills
,. arrie@s will left certain IA property to charity, ,ut
this was an IL will (written )oid$ - IA court only
deals with IA property.
c. The re)ocation of a will is "o)erned ,y the laws of
the state of the situs- loo9 at methods proscri,ed in
statute, can ,e those acts only.
d. IA choice of law rule to deal with forei"n wills- A
last will is e#ecuted in another state- deemed to ,e
le"ally e#ecuted in testator@s domicile. .oes not
tri""er ren)oi
e. Land Ta,oo- trumps full faith and credit clause, IL
/ud"ment would not ,ind IA courts.
6. .omicile (/udicial construction, opposed to residence-
le"islati)e term usually meanin" without intention to stay$
a. A person has one domicile and only one domicile-
,. coe#istence of physical presence and intention to
remain.
c. A person may not ha)e a sufficient relationship to
his domicile unless he has ,een there for a
si"nificant time.
d. In the modern approach, domicile shifts dependin"
on the ,urden (i.e. ta#es ). intestate succession$- If
there is a rupture in marital relations, the wife may
ac2uire her own domicile e)en if she is the party at
fault.
e. 1
st
restatement said that a hus,and could not chan"e
his domicile without "oin" there first himself, ,ut
-
nd
restatement pro)ides a wife@s presence may
ser)e as a su,stitute
f. If home straddles the ,order- could ,e principal
entrance, place where the person sleeps.
". A person cannot (1
st
R$ or does not usually (-
nd
R$
ac2uire a domicile ,y presence in a place under
physical or le"al compulsion.
h. ?arria"e- (1
st
R$- )alid e)erywhere if le"al in state
where contract of marria"e ta9es place.
i. Corporation- law of the state of incorporation.
/. 5hite ). Tennant
i. the law of the state in which decedent had
his domicile at the time of death will control
the succession and distri,ution of his
personal estate.
ii. Conflict ,etween 5! and 1A- 1A
controlled ,ecause 5hite had mo)ed to 1A
and had no intention of returnin" althou"h
he died in 5!.
,. &scape .e)ices
i. 4sed ,y Court to escape ri"id application of 1
st
R
ii. Characteri*ation- 'ud"e must determine what rule applies.
Contract3 Tort0 Is there a method to ma9e characteri*ation process
predicta,le0
1. Recharacteri*ation- when result of o,)ious rule would ,e
contrary to the party@s interest, loo9 at real interests of
states and parties.
a. Loo9in" directly at states interests is )a"ue and
easily manipula,le
,. Loo9 for the answer that is most /ust, intellectually
honest.
-. Le)y ). .aniels 4-.ri)e Auto Rentin"
a. Car rented in CT, ,y CT dri)ers and passen"ers-
ne"li"ent accident in ?A
,. CT- car leasin" co is lia,le for accidents of dri)er
while rented (did not apply in ?A$
c. 1
st
R would apply ?A law this court characteri*ed it
as a contract issue- ,ecause 1 was a 6
rd
party
,eneficiary of the contract.
d. Court made statute part of e)ery car leasin" contract
in CT- ,ecause the purpose was to re"ulate hi"hway
safety, not contracts.
e. Concentrate more on fairness of results-
recharacteri*ation occurs when the results seem
un/ust.
6. %aumschild ). Continental Cas. Co.
a. % sued former hus,and and insurer in 5I for an
accident in CA.
,. CA law does not allow a wife to sue a hus,and in
tort, 5I law does.
c. Court recharacteri*ed this was to family law to
allow suit.
d. Connect up contacts with policy- here, marital
harmony is connected to marital domicile, collusion
connects to insurance o,li"ation
e. ?a9e sure that ,oth states ha)e interests- a)oid
false conflicts
'urisdiction CA 5I(C
Contacts Accident, medical
,ills
+orum, domicile,
insurance o,li"ation
Law Immunity Eo immunity
1olicy ?artial harmony,
pre)ent fraud and
collusion
Case can "o forward,
allows
compensation,
spousal reco)ery
7. 1reine ). +reeman-
a. 1 released -3< of /oint tortfeasors from lia,ility
contracts in EF, and CO.
,. !A law holds that release of one tortfeasor G result
of all- which was applied, the construction and
)alidity of a release is "o)erned ,y the law of the
place where the contract was e#ecuted, ,ut its
)alidity is /ud"ed ,y the law of the place of in/ury.
iii. (u,stance ). 1rocedure
1. 1
st
R- 5hen forei"n law is applica,le it "o)erns the
su,stanti)e law, the procedure is "o)erned ,y the laws of
the forum. (C6HI$
a. C<D7- procedure decided ,y court at the forum
,. C<D<- what is procedure0
c. Assumption that the rule will ,e manipulated- offers
little or no "uidance why one type of
characteri*ation is ,etter then the other.
d. Criteria for .istin"uishin"8
i. 1articular characteri*ation in statute or
precedent
ii. Outcome determinati)e
iii. .oes it affect primary ,eha)ior or ,eha)ior
in court- discoura"e forum shoppin"
i). Remedy is procedural, and ri"ht is
su,stanti)e
). Coo9- %ow far can the court of the forum "o
in applyin" the rules of a forei"n system
,efore incon)eniencin" itself.
-. >rant ). ?cAuliffe
a. Accident in AJ, with 7 CA dri)ers and passen"ers,
1ullen died and ?cAuliffe was appointed testator
,. AJ law- no suit a"ainst estate if tortfeasor is dead
(emphasi*es fairness to sur)i)ors, )icarious
lia,ility$
c. CA law-suit can ,e maintained after death of
tortfeasor. (emphasi*es reco)ery and fairness$
d. Is sur)i)al of a cause of action su,stanti)e or
procedural0
i. This is a statutory action for wron"ful death-
,ut sur)i)al statutes are not statutory, they
pre)ent the a,atement of the cause of action
of the in/ured person, and pro)ide for
enforcement ,y or a"ainst the personal
representati)e of the deceased.
ii. Analo"ous to (OL and "o)erned ,y laws of
the forum.
iii. 1
st
R- su,stanti)e
i). outcome determinati)e- "i)es 1 a cause of
action
e. All parties are residents of CA, estate of deceased
tort feasor administered in CA, this state clearly has
the "reater interest- false conflict
f. .issent- (ur)i)al action can create a ri"ht3 cause of
action- inconsistent to rule a"ainst Cort ). (teen
6. Cort ). (teen- CA supreme Court said that sur)i)al statutes
were su,stanti)e and did not apply retroacti)ely- this is
circumstantial.
7. ournias ). Atlantic ?aritime Co. Ltd. A
a. 1 was a seaman on .@s )essel as it was chan"ed
from 1anamanian to %onduran re"istry, sued under
1anamanian la,or code- ,arred ,y 1anama (OL
,. (OL is usually classified as procedure- ,ut when a
forei"n (OL is re"arded as ,arrin" the forei"n ri"ht
sued upon and not merely the remedy, it will ,e
treated as conditionin" that ri"ht and will ,e
enforced as su,stanti)e.
c. Test8 5as the limitation tied up with the newly
created lia,ility specifically to 2ualify the ri"ht0
d. %ere, since the (OL was for a forei"n country, it is
not clear on its face if the purpose was to limit
enforcea,ility- therefore procedure of the forum is
applied.
<. (tatute of Limitations Issues- usually characteri*ed as
procedural
a. C=I6- (tatute of Limitation of forum- if action is
,arred ,y statute of limitations in the forum, no
action can ,e maintained e)en if OB accordin" to
law in the place of the accident.
,. C=I7- +orei"n (OL- if the forum does not ,ar the
cause, ,ut the place of the accident does, it can still
,e maintained.
c. C=I<- If state with cause of action e#pires after a
certain period, no cause of action can ,e ,ou"ht
after period elapsed in any state.
d. C=I=- If the forum limits reco)ery, no "reater
amount can ,e reco)ered in its courts e)en if
allowed ,y the law of the place where the accident
occurred.
e. 4niform Conflicts of Law Limitation Act- If a state
applies su,stanti)e law of another state, then it will
carry with it that state@s (OL.
f. -
E.
R- forum will apply its own (OL unless
e#ceptional circumstances- and will apply its own
(OL unless the state "o)ernin" the su,stanti)e law
,ars the action.
". (tates are startin" to a,andon (u,stance3 procedure
distinction in (OL.
i). Ren)oi
1. Occurs when choice of law rule sends dispute ,ac9 to state
where accident happened- forum state has the state of
su,stanti)e law sendin" it ,ac9- circular reasonin"- whose
law is applied0
a. +orum finds reference in heir own law to apply
another forum@s law
,. If whole forei"n law refers ,ac9 to the forum.
-. Remission- If ren)oi is accepted and the state whose choice
of law rules are e#amined refers the case ,ac9 to the law of
the forum state.
6. 1artial- forei"n choice of law refers to internal law of the
forum state
7. total- forei"n choice of law refers to whole law.
<. transmission- ren)oi refers to the law of a third state.
=. Internal Law- law would ,e applied to purely domestic
without multi-state contracts.
K. 5hole Law- Law that state would apply to multi-state
contacts, includin" choice of law pro)isions.
D. In Re (chneider@s &state
a. 4.(. Citi*en of (wiss ori"in died in EF- willed
(wiss land in (wiss law in a manner contrary to
(wiss internal law - land was li2uidated and
proceeds di)ided ,etween EF residents, the court
must administer the distri,ution of the funds.
,. .o you apply internal (wiss law, or whole law
sendin" the conflict ,ac9 to EF0 If a court is thrust
into a position where it is o,li"ed to ad/udicate the
same 2uestions concernin" title to land it should ,e
"uided ,y the methods that would ,e employed ,y
the country of the situs.
c. (ince the (wiss courts would use EF law- EF
e#cepts the ren)oi
d. Law of domicile- reference to internal law )alidated
transaction
H. -
nd
R- 1resumption that choice of law refers to internal law
unless uniformity considerations- unless it would tri""er
ren)oi.
a. %ostile to Ren)oi- presumption of internal law
,. CD(-$- 4se ren)oi whene)er the o,/ecti)e of the
particular choice of law rule is that the forum reach
the same result on the facts in)ol)ed as would the
courts of another state- occurs when the other state
has a dominant interest.
1I. 1
st
R- forum should i"nore forei"n choice of law rules,
e#cept for title of land and )alidity of a di)orce decree, in
which the whole law was accepted.
). 1u,lic 1olicy
1. Always a part of conflicts, difficult to reconcile with )ested
ri"hts.
-. ?ust ,e a dramatic departure of the court@s idea of /ustice3
fairness.
6. 1
st
R C=1-- 1recludes suits upon a cause of action created in
another state the enforcement of which is contrary to the
pu,lic policy of the forum.
7. Court should loo9 to determine pu,lic policy8
a. Le"islati)e de,ates
,. Constitution
c. 1u,lic Opinion
<. Louc9s ). (tandard Oil of EF
a. Louc9s was 9illed in ?A, all parties are EF
residents
,. ?A limits wron"ful death remedies to ,3w L<II-
L1I,III
c. Althou"h this rule was not the one adopted ,y the
EF Le"islature, it does not )iolate the pu,lic policy
of EF-
d. A ri"ht of action is property, if a forei"n statute
"i)es the ri"ht, the mere fact that the forum state
does not is no reason for refusin" to help the 1
"ettin" what ,elon"s to him.
e. Test8 ?ust ,e outra"eous to pu,lic policy,
protection of )ested ri"hts.
=. ?ert* ). ?ert*
a. EF resident in/ured ,y hus,and in CT
,. CT- hus,and is lia,le, not in EF- this was a
)iolation of pu,lic policy.
c. Test8 ?ust )iolate fundamental principles of /ustice,
"ood morals, or some deep rooted tradition of the
common weal- A court must enforce a transitory
cause of action arisin" elsewhere, unless
enforcement is contrary to the law of the state.
d. There is no remedy here protected ,y EF law- CT
cannot ma9e a remedy allowed in EF courts.
e. .issent- This is not an e#treme case, therefore, the
court should allow the forei"n cause of action.
K. %ol*er . .eutsche Reich,ahn
a. . dischar"ed 1 durin" 5eimar >ermany ,ecause
he was a 'ew
,. 1u,lic policy e#ception did not ,ar defenses of law-
c. ?aintenance of EF policies8
i. International policy conte#t- state courts
should not /ud"e a forei"n so)erei"n acts
(act of state doctrine$
ii. If the effects would ,e remote to the forum,
they will apply the forei"n law, ,ut an actual
stron" and ad)erse interest of the forum will
prompt the court to refuse the application of
forei"n law.
D. Application of 1u,lic policy e#ception- penal and ta# laws
of another /urisdiction will not ,e enforced, as they are
intimate notions of another state@s identity.
a. 1enal Laws8
i. Awards a penalty to the state, pu,lic officer,
or mem,er of the pu,lic suin" in the
community interest to address a pu,lic
wron".
ii. Criminal laws
iii. .oes not include wron"ful death or
corporate director@s misconduct- ,ecause
they satisfy a pre-e#istin" claim of ri"ht
c. 1leadin" and 1ro)in" forei"n Law
i. 1
st
R- must tell court e#actly what law should ,e applied.
ii. 5alton ). Ara,ian Oil Co.
1. AB citi*en and .& corp- accident in (audi Ara,ia
-. Law (uit in EF- 1 declined to plead (audi law and case
was dismissed
a. Lac9 of administera,ility
,. (audi law was unci)ili*ed- If . pro)ed that (audi
law was unci)ili*ed court may apply 4.(. law under
the pu,lic policy e#ception.
6. Affirmed ,y -
nd
Cir.- failure to pro)e forei"n law is fatal to
a case- a /ud"e will not ta9e notice of forei"n law, it is the
responsi,ility of 1- issue of fact, and an essential part of 1@s
claim
7. !ested Ri"hts Theory- 1 has a ,urden to pro)e forei"n law
as an element of the claim
iii. (ie"elman ). Cunard 5hite (tar- Court too9 /udicial notice of
ritish law when it was not pleaded ,3c ritish law is so much
more similar to 4.(. law.
i). Eotice and 1roof of Law
1. (ome courts assume laws are the same if not pro)en
-. Court can ta9e /udicial notice of the law of a sister state ,ut
here, forei"n law is so forei"n to this /urisdiction.
6. (tatutes Authori*in" courts to ta9e /udicial notice in
pleadin"s or reasona,le notice
7. +orei"n law must ,e pleaded li9e other facts, in conformity
with the e)idence, decided ,y a trier of fact, su,/ect to only
limited appellate re)iew.
<. Lou9nits9y- presumption that forei"n law is identical to
that of the forum unless it is shown to the contrary (Chinese
marital property law applica,le in CA$
=. +RC1 77.1- court may ta9e /udicial notice as a matter of
law, therefore ta9es decision of forei"n law out of the
hands of the /ury- and limits re)iew on appeal.
II. ?odern Approaches to Conflicts of Law
a. (tatutory (olutions
i. Administera,ility, uniformity 4T statutes may ,e no more
determinati)e then common law.
ii. +orei"n &#ecuted 5ills8 most states ha)e wills e#ecuted outside
their state of administration
iii. 4CC
1. 5hen a transaction ,ears a reasona,le relation to this state
and also to another state or notion, the parties may a"ree
that the law either of this state or the other may "o)ern the
ri"hts and duties- Act applies to transactions ,earin" a
reasona,le relation to the state.
-. (9inner- 4CC-
a. Court must characteri*e issues to select the
appropriate choice of law pro)ision.
,. The mere fact that suit is ,rou"ht in this state does
not ma9e it appropriate to apply the su,stanti)e law
of that state.
i). Insurance8 ?ost states no-fault insurance plans delimit their scope
in multi-state situations.
). orrowin" (tatutes-
1. directs the forum to dismiss claims under forei"n statutes of
limitations in appropriate circumstances
-. -
nd
R- C17-- +orum will apply its own (OL ,arrin" a claim
unless e#ceptional circumstances of the case ma9e such
results unreasona,le.
6. tollin" statutes- suspend the runnin" of the (OL a"ainst out
of state defendants.
7. 5est ). Thesis- limitations are procedural and a)oidin"
forum law controlled procedure
,. 1arty Autonomy and Rule of !alidation
i. 5hy is Rule of !alidation a ,ad idea0
1. a"ainst pu,lic policy of forum state
-. lets the party commit le"islati)e act ,y displacin" law of
the so)erei"n
6. Eeed su,stantial relation to one of the states
7. re"ime ,ased on party autonomy will undermine local laws.
<. Inconsistent with )ested ri"hts8 !ested laws are displaced
,y party autonomy
ii. 1ritchard ). Eorton
1. Contract from railroad company- 1 (LA$ posted appeals
,ond- posted when loser wants to appeal and winner wants
compensation for delay
-. E (EF$ and ? (.&$- indemnify 1 a"ainst all loss arisin"
from appeal
6. Appeal was unsuccessful so 1 had to pay, contract was
unenforcea,le in EF, ,ut )alid in LA.
7. (up. Ct. applied LA law- center of "ra)ity, where liti"ation
occurred.
<. 1resumption of )alidity- contract is made to ,e enforced
therefore parties would ha)e chosen LA law, ,ecause B
would ,e unenforcea,le under EF laws.
=. 1arties can chose laws to "o)ern concern- implicit intent of
parties to chose the law where it would ,e )alid.
iii. (ie"elman ). Cunard 5hite (tar
1. In/uries on ship from EF to &n"land
-. Clause8 liti"ation cannot ,e started one year and one day
after in/ury, decided under ritish law, a"ent could not
wai)e conditions without official notice.
6. . tried to "et 1 to settle, tric9ed 1 A - years later, 1 sued.
(there was no e#plicit wai)er of periods of limitation$
7. The contract is held- e#plicit choice of the party- respect
party autonomy
<. Rule8 In e)ery forum a contract is "o)erned ,y the law with
a )iew to which it was made and ,e "o)erned ,y its laws if
there is nothin" in the e#ecution inconsistent with that
tradition.
=. 1arties relie)e court of decisions, reduce liti"ation
K. .issent- this is a contract of adhesion
i). Interpretation ). !alidity8
1. Interpretation- loo9 at intention of the parties- deal with
party@s e#pectations under the contract.
-. !alidity- afford them an artificial de)ice to encoura"e
forum shoppin".
). +or Intention to 1re)ail, Choice of law must ,e8
1. ,ona fide3 "ood faith
-. law chosen must ha)e some relation to the a"reement
6. Cannot ,e contrary to e)ade 4.(. policy
7. no e#istence of contrary statute
<. cannot ,e oppressi)e to passen"ers
)i. -
nd
R- C1DK-
1. 1arty autonomy is OB if parties could ha)e resol)ed this ,y
an e#plicit pro)ision of a"reement- no characteri*ation
-. 1arty autonomy may not ,e respected e)en if parties may
not ha)e ,een a,le to resol)e ,y own e#plicit pro)isions
unless8
a. Eo su,stantial relationship, reasona,le ,asis (i.e.
contract with ,i*arre, immature le"al system$
,. Chosen law is contrary to fundamental policy of the
state which has a material "reater interest then the
chosen state
c. In the a,sence of contrary indication of intention,
the reference is to the local law of the state of the
chosen law. (or most si"nificant relationship$
)ii. Alternati)e Choice of law rules for Contracts
1. !alidity of a contract is to ,e decided ,y the law of the
place where contract is made, unless it is to ,e performed in
another country. If it is to ,e performed in any other place,
the intention of the parties that the contract- re8 )alidity,
nature, o,li"ation, and interpretation is to ,e "o)erned ,y
the place of performance.
-. freedom of contract remains dominant in most states- with
some restrictions (i.e. -
nd
R$
6. 'uen"er- 1arties should ,e free to select their own rules that
reflect commercial practice and the ,est law without re"ard
for the desires of any particular so)erei"ns.
7. If the parties fail to chose applica,le law- use whiche)er
law upholds the contract (used re8 usury cases, C-I6-
su,stantial relationship and cannot ,e "reatly in e#cess to
the "eneral usury law of the state$
<. .oes the rule of )alidation ma9e sense when it leads to a
law different from that chosen ,y the parties in their
contract- assume that the choice of in)alidatin" law is
always inad)ertent.
)iii. 5yatt ). +ulrath
1. 1arties ha)e presumpti)e control o)er transaction where
plannin"3 reliance is at ma#imum- choice of law3 party
autonomy will ,e honored.
c. ?ost (i"nificant Relationship
i. ?odern Approach- -
nd
Restatement- most si"nificant relationship
test- issues are separated and law of state with most si"nificant
relationship applied. (tate is the center of "ra)ity.
ii. ?ost popular sin"le approach to conflicts- ,ecause of
manipulation, presumptions and principles.
iii. +a)ored ,y /ud"es ,ecause of the "reat discretion "i)en.
1. C=- Choice of Law
a. Court will follow stat. .irecti)e of own state
,. (-$- 5here no directi)e, loo9 at8 (not e#clusi)e, and
not listed in order of importance$
i. Eeeds of interstate and international system
ii. Rele)ant policies of the forum
iii. Rele)ant policies of other interested states
i). 'ustified e#pectations of the parties (not
really applied in tort cases$
). asic policies of the field of law- when
policies of the interested states are lar"ely
the same ,ut there are minor differences-
,est to apply local law which will ,est
achie)e the ,asic policy.
)i. Certainty, predicta,ility, and uniformity-
1. discoura"e forum shoppin"
-. more important when parties "i)e
ad)ance thou"ht to le"al
conse2uences of their transaction.
)ii. administera,ility
-. C17<- Tort, C1DD- Contracts- local law with most
si"nificant relationship to parties under principles of C=
a. (-$- other elements to determine ?(R.
i. C17<-
1. place where the in/ury occurred,
-. place where the conduct causin" the
in/ury occurred
6. domicile, residence, nationality,
11, incorporation of parties
7. place where relationship ,etween
parties is centered
ii. C1DD
1. place of contractin"
-. place of ne"otiation
6. place of performance
7. location of su,/ect matter of the
contract
<. domicile of parties
,. C1DD(6$- If place of ne"otiation and performance
are in same state- local law will usually ,e applied.
6. C1<=- Law of C17< will determine if actors conduct was
tortuous- ,ut will usually ,e the law of the estate where
in/ury occurred- presumption su,/ect to ?(R test
7. C17H- .efamation- local law where pu,lication occurs
unless another state has a ?(R
<. C1H=-
a. in the a,sence of choice of law ,y the parties, the
local law of the state where the contract re2uires
that the ser)ices, or a ma/or portion ,e rendered
unless some other state has a more si"nificant
relationship.
,. 1resumption that state where ser)ices are performed
has the ?(R- could ,e o)ercome
i). 5ood ros %omes ). 5al9er Ad/ustment ureau (Contract$
1. 1 is an a"ent for CA res (>a"non$, . (5ood$ is a .& corp
with 11 in CO. A suit in CO
-. Contract was si"ned in CO- ne"otiations in E?, CO, and
CA. A halted ,ecause >a"non had no E? license- reco)ery
in CO, not E?, EF treat complaint as in)alid.
a. Loo9 at where ne"otiations occurred
,. Loo9 at where construction is done- when
performance is ille"al in the place of performance,
the contract will usually ,e denied enforcement.
c. %ere, E? has a re"ulatory scheme for Licensin"3
Construction
6. E? law applies- does no allow estoppel
). 1hillips ). >? (Torts$
1. Truc9 purchased in EC, then mo)ed to ?T, dro)e ,ac9
across country- accident in B(. 1 1hillips is the
representati)e o &states3 le"al "uardian- li)es in EC.
-. used -
nd
R- 5hich states laws should apply0
a. 1- ?T- no limit on 1roduct lia,ility, strict lia,ility A
Court a"rees
i. C17=, C1K<- Ri"hts and lia,ilities are
determined ,y the laws of the state where
in/ury occurred unless another state had an
?(R-
ii. here they were residents of ?T at the time
of in/ury, statute pre)ents in/ury to ?T
residents, deter future sales of defecti)e
products in ?T- concern arises as soon as a
product is either sold in ?T or causes in/ury
to an ?T resident.
,. .- B(- comparati)e in/ury statute, restrictions on
puniti)e dama"es, different defenses a)aila,le.
i. O)erridin" policy of B( (tat. To protect B(
residents- case does not in)ol)e conduct that
B( was attemptin" to punish or deter
throu"h puniti)e dama"es pro)isions.
6. 1u,lic policy is not a factor accordin" to the -
nd
R- focus on
policies of the forum, would ,e redundant.
d. Interest Analysis
i. Interest Analysis ). -
nd
R-
1. may reach different results (see Too9er$
-. /ud"es will use these approaches to"ether to show that they
will ha)e the same result
6. none of the presumptions of -
nd
R- desi"ned to "et away
from characteri*ation
7. directness3 intellectual honesty- tries to apply law directly
ii. Criticism- post-hoc reconstruction of le"islati)e intent, usually a
le"al fiction.
iii. ?are9 ). Chesny, Chesny ). ?are98
1. cases try to reconcile statutory interpretation of C1HDD-
attorney fee reco)ery pro)ision of +RC1 =D
-. 1osner8 le"islature interpreted in li"ht of purposes was
passed to ,rin" meritorious ci)il ri"hts claims, should
pre)ail after settlement
6. (upreme Court8 Lan"ua"e, not purpose should ,e analy*ed-
must 9eep ci)il ri"hts suits on par with all other lawsuits
7. Interpretation- loo9in" at different ways determines how
law will ,e applied- domestic conflicts
i). Currie@s Theory3 >o)ernmental Interest Analysis
1. Interest Analysis should only ,e tri""ered when stat@s
domiciliary is concerned- must distin"uish ,etween true
and false conflicts
-. Courts should determine the applica,ility of a law ,y
e#aminin" the law@s purposes- application must achie)e the
policy "oals sou"ht ,y a so)erei"n which passed the law.
6. 1
st
R ne)er achie)ed uniformity ,ecause of escape de)ices-
,ut we should )alue /ustice o)er uniformity.
7. +alse Conflicts8
a. All policies end up on one side of the led"er
,. OR it does not matter which policy is applied
,ecause they will all dictate the same result.
c. In some cases, depeca"e will separate true and false
conflicts
d. ?ili9en- false conflict occurs when creditor and
woman are from the same state.
<. Ren)oi8 not ta9en into account, procedural pro)ision can
show lessened interest
=. In a true conflict- policies of each state would ,e furthered
if the law was applied
a. Courts should re-e#amine the law of each state, it
may ,e possi,le to a)oid a conflict throu"h a
moderate or restrained interpretation of the policy
or interest of one state.
,. If not, the forum may apply its own law
c. If the forum has no interest of its own ,ut must
chose ,etween the laws of - other states8
i. 4se own forum law if it is similar to one of
the states
ii. Resol)e the conflict li9e a supreme
le"islati)e ,ody (compromise$
d. forum shoppin" is OB- if the results are /ust, may
,ias the results for the 1.
K. 4sed ?ili9en ). 1ratt to illustrate8
a. ?&- married woman could ,ind herself to a
contract
,. ?A- married woman could not ,ind herself ,y
contract as surety for hus,and or any 6
rd
party
c. 4T at the time of the suit, a ?& li9e proposal was
introduced in ?A and decisi)ely defeated- it is not
the ,usiness of the courts to su,stitute their
/ud"ment for that of the le"islature.
). .ifficulties of interest Analysis8
1. myth of le"islati)e intent
-. replaces territorialism with emphasis on domicile
6. promotes forum shoppin"
7. 4T results may ,e less ar,itrary- why should a law apply
if its policies will not ,e ad)anced0
)i. +alse Conflicts
1. Too9er ). Lope*
a. ?I student in ?I car accident, EF resident, car
re"istered and insured in EF- EF is the forum
,. +alse Conflict- ?I "uest statute prohi,ited reco)ery
,y "uest statute a"ainst host dri)er unless "ross
ne"li"ence-
i. to pre)ent collusion- EF insurance
company, co)ers out of state in/ury,
ii. assure priorities of dri)er in reco)ery- not
efficient as those findin" ne"li"ence can sue
anyway.
iii. doc9et clearin"- EF forum
c. Interests of ?I8
i. Re"ulation of their own roads- this is a suit
a,out reco)ery
ii. ?I does not protect the passen"er, e)en
thou"h a ?I resident, why should EF
d. .issent8 -
nd
R tests yields opposite results- should
apply the law of the place where accident occurred-
"oals of uniformity.
-. (chult* ). oy (couts
a. (e#ual molestation and wron"ful death case ,y a
scout master
'urisdiction EF E' TM O%
Contacts -Conduct
started on trip
-forum
-Conduct
continued in
E'
-(uicide
- domicile of
1arents and
oy (couts
oy (couts
chan"ed
domicile
after case
+ranciscan
ros
incorporated.
Law Eo charita,le
immunity
Charita,le
immunity
Eo
charita,le
Nualified
charita,le
immunity immunity
1olicies -.eterrence3
re"ulate
conduct
-compensation
-&ncoura"e
charita,le or"
-allocate losses
-doc9et control
,. Loss Allocation Rules
i. 1ost-hoc compensation for tortuous conduct,
usually apply the law of the common
domicile.
ii. (itus has a minimal interest in determinin"
the ri"ht of reco)ery or the e#tent of the
remedy in an action ,y a forei"n
domiciliary.
iii. (ee Eeumeier rules
c. Conduct control- deterrence, apply law of the place
of the tort
i. 1rotect medical creditors who ser)iced
in/ured parties in that state- this and wards
do not apply in this case.
ii. 1re)ent in/ured tort )ictims from ,ecomin"
pu,lic wards in the locus state
iii. .eterrent effect on future tort feasors. EF@s
deterrent interest is less ,ecause none of the
parties is a resident and rule is loss
allocatin", rather then conduct-re"ulatin".
d. Reasons for Applyin" law of common domicile8 E'
i. Reduce forum shoppin"
ii. Re,uts idea of a ,iased forum
iii. 4niformity3 mutuality- contradicts 1ro-1
,ias
i). Administera,ility
). ut does E' really want to protect a
charita,le or"ani*ation that has since mo)ed
out of state
e. +ranciscan ros- Choice ,etween EF and E' law-
althou"h law of the place of the tort would usually
apply, further enforcement and EF has no interest-
enhance smooth wor9in" of the multi-state system.
f. Court has e)er decided when interests should ,e
determined, i.e. conduct, ,e"innin" of liti"ation
i. Chan"e of domicile for oy scouts "i)es no
"reater interest to any state.
6. Eeumeier Rules for loss allocatin" cases8 arise mostly in
"uest statute cases- these are standards
a. If there is a common domicile of 1 O ., and the car
is re"istered there, then apply that state@s law
,ecause the law of the place of in/ury will ha)e no
connection- false conflict (Too9er, (chult*$
i. Reduces forum shoppin"
,. 5here . is in a pro-. state and conduct occurred
there, e)en if 1 is from a state that is pro-1, or if 1 is
from a pro-1 state and conduct occurred there, e)en
if . is from a proG. state- apply the law of the state
where the conduct occurred.
i. 1lace of in/ury is a neutral factor- and re,uts
pro-forum presumption.
c. Other circumstances- no common domicile, usually
apply the rule of where the conduct occurred unless
it should ,e displaced to ad)ance su,stanti)e
purpose3 multi-state interests ((chult*$
i. This pro)ides an a)enue for disre"ard of the
,asic "oals.
d. These rules were drafted for "uest statutes ,ut could
,e applied in other cases- must ,e a conflict
,etween laws that allocate loss after a tort has
occurred.
e. ?any rules ser)e ,oth loss allocatin" and conduct
re"ulatin" purposes
f. Apply in tort cases only, contract cases use the
center of "ra)ity test- no policy analysis needed
7. Cooney ). Os"ood ?achinery
a. Blin" whose interest succeeded to %ill sold
machine to American (td. (EF$ throu"h a EF sales
a"ent (Os"ood$
,. ?ueller (?O$ "ot machine, and his employee
Cooney "ot hurt and sued entire chain
c. ?O law- there is no tort lia,ility for wor9ers comp
i. Contacts- 1@s dom, employer, 1ro-., in/ury
d. EF law- contri,ution claims a"ainst employees
i. Contacts- claimant for contri,ution, pro-
Claimant
e. This is a true conflict (-
nd
Eeumeier rule$ , therefore
?O law was applied ,ecause conduct happened
there.
i. 1rotection of reasona,le e#pectations-
?ueller could hardly e#pect to , haled
,efore a EF court for in/uries to a ?O
employee in ?O.
)ii. 4npro)ided +or Case
1. &rwin ). Thomas-
a. 1 (5A$ was in/ured in 5A ,y . (OR$- 1@s wife
sued . for loss of consortium, allowed in OR, not
5A.
,. If neither state has an interest, the law of the forum
is applied ,ecause of con)enience, administera,ility
c. If forum is committed to interest analysis8
i. Apply the law that is more enli"htened or
humane
ii. Apply law that aids local liti"ant
iii. Treat forei"n claimants as they would ,e
treated in their own state
i). Law of the forum PP (,est$
)iii. Resol)in" True Conflicts
1. Lilienthal ). Baufman
a. - promissory notes made ,y OR spendthrift with
official "uardian
'urisdiction CA OR
Contacts 1@s domicile, contract made and
performed
.@s domicile, forum
Law .oes not reco"ni*e disa,ility of a
spendthrift to contract
(pendthrift statute
(protection$
1olicy Contracts are enforcea,le, a)oid fraud 1rotect . and family
,. 4nder interest analysis, OR law applies- althou"h
there are many CA contacts protection of family
and spendthrift are most important.
c. Resol)e true conflicts ,y law of the forum- to
consistently ad)anced the policy of its state where
there is no solution. Courts cannot ade2uately
discern which state has a more si"nificant
le"islati)e interest.
d. OR has interest in promotin" citi*ens of other states
to conduct ,usiness with OR
e. In interest analysis, loo9 only at policies of laws in
conflict, ti"ht focus.
f. .issent- this ,road deference to le"islation may
pro)e too much- - OR le"islature may ha)e
,alanced law differently if they 9new that this
would affect out of state residents.
-. Law of the +orum- Criticisms
a. &nd of rule of )alidation
,. .iscrimination a"ainst non-residents- or is the real
source of discrimination the une2ual treatment of
similarly situated residents if the forum departs
from forum law.
c. +orum (hoppin"
d. If a true conflict is ,rou"ht in a disinterested third
state- that state should attempt to dismiss for +orum
non con)ieniens, then apply the most humane law
or one most similar to their own.
6. ern9raut ). +owler
a. 1 and .ecedents made oral contract to for"i)e a
de,t, . did not put it in his will. . dies in CA,
forum in CA- all other contacts in E!.
,. CA law says this is not )alid- )alid under E! law
c. Court relies on E! law to protect the reasona,le
e#pectations of the parties
d. CA policy- moderate and restrained interpretation
,ased on /ustifia,le e#pectations of the parties- does
not apply its own law
e. (tatutory interpretation usually does not loo9 to
e#pectations of pri)ate parties ,ut used to see policy
,ehind the law- reachin" out ,eyond the 7 corners
of the law.
7. ernhard ). %arrahs (CA$
a. ?yers (CA$ "ot drun9 at %arrah@s in E! then
collided with 1 in CA, 1 sued %arrahs for sale and
furnishin" alcohol
,. E! law- denies reco)ery of ta)ern owner3 fa)ora,le
to ,usiness
c. CA law- reco)ery if pro#imate cause of in/ury3
protect "eneral pu,lic from in/ury
d. CA Comparati)e Impairment 1olicy for true
conflicts- CA must ,e a,le to enforce their own
laws to ,usinesses that solicit to out of state- E!
purposefully a)ailed itself onto CA law.
e. %ere, E! law would ,e less impaired ,ecause E!
had criminal lia,ility on ,oo9s already had duty.
CA imposes their own ci)il lia,ility on E!- ,ut not
an entirely new remedy
<. Comparati)e Impairment and policy (electin" Rules-
a. 5hiche)er /urisdiction is more impaired,
su,ordinated ,y policies of another state- their law
is applied.
,. .oes not always lead to application of the law of
the forum (Offshore Rental- applies law of the place
where the accident occurs$
c. etter Law- ?inimi*e effects ,y applyin" the
stron"er policy.
i#. Leflar@s Choice Influencin" Considerations- impressions, not rules
1. 1redicta,ility of Results- more consensual transactions, not
torts
-. ?aintenance of interstate and International Order- do not
apply law of the state if no interest- a)oid false conflicts
6. (implification of the 'udicial tas9- su,stanti)e ).
procedural
7. Ad)ancement of +orum@s >o)ernmental Interests
<. Application of etter Rule of Law
#. ?ilo)ich ). (arai-
1. OE residents dro)e to ?E and had accident- applied ?E
law as ,etter law.
'urisdiction OET ?E
Contacts
(Is this a false
conflict ,3c of
common domicile$
Auto insurance,
domicile of 1 and
.
Accident, forum,
medical creditors
Law >uest statute Eo "uest statute
1olicy Eo collusion compensation
-. Choice Influencin" Considerations
a. 1redicta,ility- accidents cannot ,e planned
,. ?aintenance of Interstate Order- .oes state ha)e
su,stantial connection to the forum- ,oth states
ha)e connections, more connections with OE
c. (implification of /udicial tas9- ,oth are easy to
apply
i. OE- "ross ne"li"ence
ii. ?E Ano "uest statute
d. Ad)ancement of +orum@s >o)ernment8
i. Repayment of ?E creditors3 compensation
ii. . is in/ured in ?E- deterrence
iii. 'ustice administerin" state- courts should
not administer rules inconsistent with ?E
stds of /ustice
e. Application of the etter Law
i. (tates are co-e2ual so)erei"ns to ma9e )alue
/ud"ments- cannot /ud"e another@s result
ii. 'ustice e#ists in the law- if not li9ed, can ,e
chan"ed throu"h the political system
iii. etter law could chose somethin" other then
forum@s law for a more fair result.
6. .issent- forum shoppin"- %ere, the ?E court does not
thin9 that "uest statutes were consistent with ?E@s policy
#i. 'epson ). >eneral Casualty Insurance Co. of 5I
1. ?E resident has accident in AJ, with usiness in E.
insurance policy.
-. ?E- allowed stac9in"- could "et L for each car in)ol)ed in
the accident
6. E.- no stac9in" (applied ,y ?E court- case ,y case
determination$
7. Choice of Law Considerations
a. 1redicta,ility of Result-
i. oth contract and tort principles apply
ii. ?utual e#pectation that they had ne"otiated
a E. contract- paid no rates- ?E rates were
hi"her
iii. 5ould other states apply ?E laws in these
circumstances
,. ?aintenance of Interstate Order
i. +orum shoppin"- su,)ert insurance where
state to state tension
ii. 5ould impede E.@s policy3 mo)ement of
people and "roups
c. Administera,ility in ,oth cases
d. Ad)ancement of +orum@s >o)ernmental Interest-
i. ?E policy to uphold contracts
ii. 5hat is ?E Q@s interest now that ' li)es in
AJ
iii. .o not want to interfere with policies of
so)erei"n states
e. etter Rule of Law
e. 1ro,lem Old and Eew
i. .epeca"e-
1. R of issues in the case are di)ided and different laws are
applied
-. e#ample8
a. 1 in/ured in C (1 year statute of limitations$ sues
car owner in AB (no lia,ility to car owners that
were not dri)ers, lon"er (OL$
,. AB "a)e C law on lia,ility ,ut C law dictated
(OL
c. This remedy could not ,e achie)ed under the
su,stanti)e law of either state.
6. ?arie ). >arrison-
a. EF court- is oral a"reement ,arred under (tatute of
+rauds under ?O or EF
,. Contract was enforcea,le ,ecause declared )oid
anythin" not written
c. ?O- procedural, therefore unenforcea,le
d. Court enforced B, did not apply either law.
7. Adams ). Bnic9er,oc9er (ociety (ima"inary case$
a. >riswold- use 1
st
R ,ecause it is a,surd to reach a
result not applyin" the internal law of either state,
apply law of only one /urisdiction
,. Currie- use "o)ernmental interest analysis, does not
li9e premise of splittin" law to "et a result not
contemplated ,y laws of either state.
<. ?. Casualty ). 'ace9
a. EF and E' do not hold insurance companies lia,le
i. E'- spousal immunity
ii. EF- special pro)ision- no reco)ery when
spouses sue one another unless e#press
pro)ision
,. Insurer held lia,le under EF tort law
c. ?ulti-state cases yield multi-state results
ii. Ren)oi
1. 1fau ). Trent Aluminum Co. A
a. Colle"e (tudents arri)in" in IA, passen"er (CT$
in/ured. Car was owned ,y E' corp, insured in E'.
,. IA normally ,ars suits a"ainst host dri)ers, CT and
E' do not.
c. Interest Analysis- IA "uest statute does not apply
,ecause interests to ,e protected, i.e. insurance
o,li"ations do not occur in IA- therefore CT law is
applied ,ecause CT and E' laws are the same
d. If one state@s su,stanti)e law is applied, do not also
use choice of law rules- ren)oi frustrates
"o)ernment interest analysis, a choice of law rule
does not identify a state@s interest in the matter
-. Interest Analysis and Ren)oi
iii. Rules ). (tandards
1. 1aul ). Eational Life
a. Le# loci is applied- apply rules o)er standards,
contemptuous of modern approaches
,. 4sed 1u,lic 1olicy e#ception ,ecause of the stron"
interest of 5! to allow 1 to reco)er for ne"li"ence.
c. &)en when courts want to apply rules, they can
twea9 them to their own li9in".
i). Comple# Liti"ation
1. In Re Air Crash Eear Chica"o
'uris. ?O EF TM CA OB IL
Contacts ?..-
11
AA-
111
AA-
11-
?..-
Conduct
AA-
maintenance,
misconduct
(itus, 1
.om., forum
Law 1uniti)e Eo
1uniti)e
1uniti)e Eo puniti)e 1uniti)e Eo puniti)e
Choice
of Law
?(R,
center
of
"ra)ity
Comparati)e
impairment
?(R3 Interest
analysis
a. .-
i. ?c.onell .ou"las- defecti)e desi"n and
manufacture
ii. American Airlines- ne"li"ent maintenance
,. Lower Court
i. used most si"nificant relationship test of
ILL- applied Bla#on
ii. 1uniti)e .ama"es- loo9 to law in each .@s
11
c. Re)ersed8 Eeither .ef. >ot puniti)e dama"es,
d. Applied IL law ,3c compromise states with
conflicts- loo9 for ease of administera,ility
e. .omicile of 1@s do not matter
f. Compariti)e Impairment8
i. Is there a true conflict0
ii. Is a restrained and moderate approach
possi,le0
iii. (ince law of states would ,e e2ually
impaired- used IL law
-. In Re A"ent Oran"e8 (- million !ietnam )ets$
a. +ed common law should "o)ernSstruc9 down ,y
appeals court
,. Assumes national consensus law
i. Con)er"ence- not /udicially forced upon
states with any federal authority
ii. 'ud"es try to pro)e that despite different
methodolo"ies, same application of law
would result.
iii. Coerced settlement- /udicial wi""lin".
6. ?ass Actions
a. ALI Comple# Liti"ation 1ro/ect C=.I1-
clarification, limits etc.
,. ?ulti-state Class Actions- choice of law can ma9e
or ,rea9 classifications
i. If choice of law points to one wor9a,le law,
that class is certified
ii. Le# loci- (rid"estone$- (tate of each .@s
action, this is a no)elty- financial loss in
each of <I states so class could not ,e
certified
iii. To,acco- causati)e misconduct- lead to a
principal place of .@s ,usiness, where the
crimes occurred.
c. 1uniti)e dama"es for deterrence and compensation
d. Bla#on- +ed. .ist. Ct. in di)ersity- has to apply
choice of law rule of state where it sits
e. !an .usen- Transfer from one federal district court
to another, court to which case is transferred applies
law of state from which it is transferred.
III. The Constitution and Choice of Law
a. Limits of Le"islati)e 'urisdiction
i. Constitution must pro)ide a ,aseline for holdin" ,efore somethin"
,ecomes )iolation of due process or e2ual protection
ii. Constitutional 1rotection for Choice of law8
1. reduce interstate friction
-. pre)ent unfair treatment to parties3 indi)idual fairness
6. Limits states le"islati)e a,ility
iii. Can +orum apply its own law8
Fes Eo
Alas9a 1ac9ers
All(tate
1acific &mployer
%ome Insurance
radford
(hutts
i). .ue 1rocess
1. %ome Insurance Co. ). .ic9
a. oat was specified in ?M, reinsured in EF. .ic9
was ?M citi*en, li)in" in TM
,. TM (tatute- in)alidated 1 year limit to ,rin" claim
to ,rin" claim which was )alid under ?M law
c. .ic9 sued in TM- ,ut TM could not apply its own
law ,ecause of insufficient contacts.
i. Eeed physical contacts ,esides the forum
ii. Althou"h it was 1@s domicile, insurance
o,li"ation and ,oat were in ?M
iii. TM lac9s power to ta9e property ri"ht of
?M
d. Is there unfair surprise to insurer3 parties0 Fes- EF
or ?M insurer could not e#pect TM law to apply
-. Is Territorialism Constitutionally Re2uired0
a. EF Insurance Co ). .od"e- Court has not adopted
place of contractin" ,ut minimal scrutiny to pre)ent
unfair surprise
6. .oes the Constitution >uide Courts in their Choice of Law
Re"ime0
a. ?inimally- ?inimum contacts for .ue 1rocess is
harder test then for 1ersonal 'urisdiction
,. .oes not dictate Choice of Law unless law of state
has insufficient contacts.
). +ull +aith and Credit
1. radford &lectric Li"ht ). Clapper
a. oth 1arties are from !T, ,ut conduct occurred in
E% as a result of @s ne"li"ence- Lawsuit in E%
,. !T- e#clusi)e wor9ers comp remedy
c. E%- can either file for 5C or ,rin" tort action
d. E% court applied their own law ,ut o)erruled ,3c of
++C- ,ecause of o)erwhelmin" contacts in E% (due
process is satisfied ,3c this is the place of the
accident$
e. .istinction ,etween claims and defenses- E% is
o,li"ated to "i)e ++C to !T defenses
i. &ffecti)eness of !T law
ii. E% policies are not implicated ,y the facts
of this case
iii. This loo9s li9e a false conflict
i). 1u,lic policy e#ception used
-. Alas9a 1ac9ers ). Industrial Acc. Comm.
a. &mployee hired in CA to wor9 in AB, in/ured in
AB, sues in CA
,. B pro)ision to use AB law ,ut conflicted with CA
statute- . must satisfy ,urden of proof that AB@s
interest was strin"er then CA (alancin" test$-
Tilted in fa)or for forum to apply own law
6. 1acific &mployers Ins. !. Industrial Acc. Comm@n
a. ?A employer sent employee to CA ,ranch temp,
in/ury and suit in CA
,. 5or9ers Comp pro)isions conflict ,etween ?A and
CA- Court applied CA law
c. ++C does not allow le"islation across state lines,
distin"uished radford ,ecause !T and E% laws
were not in direct conflict (no ,alancin" test$
7. (tate Interests and the Constitution
a. Tests8
i. ++C (interstate friction$ ). .ue 1rocess
(indi)idual con)er"ence$- supreme court
applies test ar,itrarily
ii. .1
1. +airness 1ron" (.ic9- unfair
surprise$
-. Nuid 1ro Nuo- enefits, therefore
,urdens
iii. (tate Interest8 must ,e le"itimate, implicated
in the facts of the case.
)i. Con)er"ence
1. Allstate Ins. !. %a"ue
a. Car Accident in 5I ,etween - 5I residents, suit in
?E ,ecause of stac9in" policy
,. ?E court uses Leflar approach, stac9in" is ,etter
law- 1lurality accepts ?E law o)er ++C and .1
challen"es
i. &mployment contacts- e)en thou"h did not
seem to ,e implicated in the facts of the
case.
ii. Allstate does ,usiness in ?E
1. +air to e#pect forum
-. 2uid pro 2uo
6. .issent- only allowed in certain
states, ,usiness plannin"
iii. 5ife (1$ then mo)ed to ?E
1. protection of state residents- not
wards of the state
-. (tandin" alone is not o9- will
pro)ide forum shoppin"
c. ar is set really low to meet ++C and .1- must ,e
more then /ust a forum
-. 1hillips 1etroleum ). (hutts
a. Class Action- B( court applied its own law e)en
thou"h HHT of the leases had no B( interests
,. 4nconstitutional ,3c of lac9 of contacts
c. 1rocedural efficiency should ,e important in
comple# class actions
d. Test8
i. (i"nificant contacts or a""re"ation of
contacts- state interests
ii. +airness- cannot ,e ar,itrary or unfair.
6. ?inimum Contacts and Choice of Law
,. O,li"ation to 1ro)ide a +orum- If one state pro)ides a cause of action
must another state pro)ide a forum
i. %u"hes ). +etter
1. IL statute in 5I court for wron"ful death was dismissed
,ecause 5I had a law a"ainst suits ,ased on forei"n
wron"ful death statutes.
-. (up Ct. held that 5I policy should ,e su,ordinated for ++C
to pu,lic acts of other states- "eneral discrimination a"ainst
the laws of one state is an ++C )iolation
a. Eo anta"onism to wron"ful death cases in "eneral
(i.e. contrary wron"ful death statute, true conflict, if
(OL is ,ound up in statute$
,. 5I cannot escape this constitutional o,li"ation to
enforce the ri"hts and duties under the laws of other
states ,y remo)in" /urisdiction
c. There are minimum contacts in 5I- conduct in IL,
,ut parties are 5I residents
d. This case merely dealt with the o,li"ation to
pro)ide a forum, not "i)in" a special su,stanti)e
ri"ht to parties (contrary to AB 1ac9ers$
6. Laws that promote state o,/ecti)e ,y pre)entin" forei"n
action will ,e o)erridden ,y ++C, if statute promotes
su,stanti)e ri"hts then "i)en more deference.
7. limitations on Rule8
a. +orum non con)eniens
,. A)oid ,urdens on forum courts
ii. &2ual 1rotection
1. (u,stanti)e Ri"hts- states may define su,stanti)e ri"hts
differently and so lon" as the forum has a le"itimate
interest (pu,lic policy conflict$- the forum may apply its
own law
-. 5ithholdin" from state courts power to entertain claims
,ased on another states@ laws- directly at odds with ++C-
must ,e su,/ect to strict scrutiny- must ha)e a specific
/ustification, that is narrowly tailored to fit the /ustification.
iii. Tenn. Coal Iron ). >eor"e
1. >eor"e in/ured in AL, ,rou"ht suit in >A under AL code-
code allowed suit ,ut said it must ,e ,rou"ht in AL
-. The Cause of action was transitory and therefore could ,e
,rou"ht in an AL court- which must "i)e ++C- no need to
"i)e ++C to /urisdiction selection mechanism, )enue is not
part of a ++C ri"ht (not wrapped up in su,stanti)e ri"ht$
%u"hes Tenn Coal
Cannot discriminate a"ainst
forei"n state@s cause of action
(tatute cannot discriminate
a"ainst forei"n forum- unless
completely wrapped up in
cause of action (unli9ely$
i). (tate 1ower to Beep Liti"ation at %ome
c. 4nconstitutional .iscrimination in Choice of Law- (tate .iscrimination
A"ainst other (tates@ Citi*ens
i. (upreme Court of E.%. ). 1iper
1. !T resident applies to E% ,ar- not allowed ,3c limited to
E% residents
-. 1 O I citi*ens of each state shall ,e entitled to all 1OI
(includin" employment$ of citi*ens in se)eral states, ,ut
can discriminate a"ainst nonresidents for recreational
purposes
6. This was unconstitutional ,ecause it was in)idious
discrimination- interest in re"ulatin" officers of the court
does not correlate to residents- fundamental ri"ht is
in)ol)ed (employment$
7. To )iolate 1OI must ha)e a su,stantial reason for the
difference in treatment- must ,ear a su,stantial relationship
to states o,/ecti)e (intermediate scrutiny$
ii. 5hen is an interest fundamental enou"h to )iolate 1OI8 5hen the
parties ha)e /ustified e#pectations
1. >uest (tatute Cases
-. Lillienthal- OR spendthrift statute
iii. 1OI ). Interest Analysis8
1. In 6I years, no court has e)er held a states law
unconstitutional under 1OI
-. Can ,e accommodated to allow forei"n states room to
ma9e their laws for their residents, comity
I!. Role of ++C and its effect on Reco"nition and &nforcement of +orei"n
'ud"ment
a. Res 'udicata
i. +1- +irst forum to reach final /ud"ment- how much wei"ht do +-,
+6U "i)e to +1@s /ud"ment0
ii. +ull +aith and Credit and Limitations
1. +auntleroy ). Lum
a. - ?( residents entered into ille"al "am,lin"
contract- ar,itration found that . was inde,ted to 1
anyway- ,ut found contract was ille"al and no
reco)ery
,. 1 sued in ?O to reco)er (+1$ who assumed that ?(
ar,itration award was )alid and found for 1
c. 1 then sued in ?( (+-$ to collect /ud"ment- who
refused to enforce under ++C
d. (C re)ersed- forces +- to accept +1@s /ud"ment as
conclusi)e
i. &rror in /ud"ment in ?O court is not a
reason for re)ersin", ,ut no ori"inal
/urisdiction is
ii. If +1 is a +IEAL '4.>&?&ET then it must
,e enforced (++C$- reduces interstate
friction of one state ,ein" a,le to o)erride
decision of other.
iii. Losin" party should directly appeal in +1 to
fi# mista9es
e. .issent8 ++C should not ,e a,le to o,li"e +- to
enforce a criminal act
-. Far,orou"h ). Far,orou"h
a. +amily li)ed in >A., filed for di)orce, dau"hter
mo)ed to (C and sued for more money which was
awarded, >A had "i)en lump sum of child support-
final /ud"ment not su,/ect to modification
,. Reopenin" >A di)orce decree )iolated ++C- (C@s
interest of protectin" the child was not enou"h to
o)erride ++C
c. Trend toward )ery small 1u,lic 1olicy e#ceptions
for ++C- Codified in C1I6 of -
nd
R- i.e. di)orce,
wor9ers comp, penal and ta# /ud"ment
d. .issent of 'ustice (tone8
i. There should ,e a limitation to ++C- >A did
not intend to limit (C@s ri"hts
ii. &#ception to ++C for 1u,lic policy reasons
6. &l9ind- Case (>A di)orce decree$ was reopened ,ecause
father had mo)ed to CA, and mother mo)ed to EF, and
>A adopted 4niform Reciprocal 'ud"ment Act which
e#pressly reser)ed to the state of the o,li"or@s residence the
power to apply its child support laws.
7. Can +- "i)e "reater preclusi)e /ud"ment then +1 has0
a. ?i"ht ,e due process issue
<. Interest of the +orum
=. Thomas ). 5ashin"ton >as Li"ht
a. ..C. resident sues for ..C. 5or9man@s comp,
in/ured in !A- "i)en !A 5C
,. 6 years later sued for .C 5C as a supplement e)en
thou"h !A law precludes any other reco)ery at
common law- (up. CT plurality allowed ,oth
awards.
c. 1re)ious Cases
i. ?a"nolia- LA resident in/ured in TM-
o,tained TM awards, see9s supp. Award
under LA- not "i)en ,3c TM award is
entitled to ++C.
ii. ?cCartin-
1. IL residents doin" wor9 in 5I,
compensation did not effect any
remedy under 5I law,
-. 5I sup. Ct did not allow supp.
Award- "a)e more deference to IL
/ud"ment
6. (up. Ct. allowed supp award ,ecause
there needs some unmista9ea,le
lan"ua"e ,y a state le". A must focus
on intent in a,sence of
7. 4nless +1 ,loc9s all supplemental
awards they are allowed
d. 1lurality Re/ected ,oth ?a"nolia and ?cCartin in
fa)or of a ,alancin" test8
i. ?cCartin is an unwarranted dele"ation to
states to determine ++C
ii. .etermination of an administrati)e a"ency
(5C$ should not ,e entitled same wei"ht as
/ud"e made law
iii. Interests
1. !A@s interests in limitin" lia,ility
Eot important ,ecause 1
could choose to reco)er in
!A or .C
-. 5elfare of Indi)idual &mployee in
!A and .C
Eot ,e harmed ,y
supplemental award
6. Inte"rity of +ormal .eclaration (!A$
alancin" test of states
interest- o)errules ?a"nolia.
+act-findin" in administrati)e
tri,unals are entitled to the
same res /udicata in +- as
court. ut Admin tri,unals
ne)er consider any policy
e#cept that of their own state-
therefore there can ,e no
o,/ection to findin" .C
ri"hts
(tate interest not stron"
enou"h to pre)ent other states
with o)erlappin" /urisdictions
o)er particular in/uries.
e. Concurrence8
i. Res /udicata should ,e applied to
administrati)e decisions
ii. 4n-mista9a,le lan"ua"e test
f. .issent8 4pholdin" ?a"nolia- ultimate res /udicata
iii. Land Ta,oo
1. Interest Analysis- .oes court really care a,out ownership
or is it more concerned with administera,ility0
-. .urfee ). .u9e
a. Action in E& to 2uiet title to land- 0 whether it was
in ?O or E&- resp. lost ,y sayin" no /urisdiction
,. Resp. then sued in ?O court ,ut +1 decision
entitled to ++C, upheld ,y (C- states were not
,ound ,y other courts holdin" ,ut cannot re-liti"ate
c. Rule is no different when claims made that ori"inal
forum had no /urisdiction o)er (u,/ect matter-
su,/ect matter is fully liti"ated in the ori"inal forum
and therefore could not ,e retried.
d. Can +- re-liti"ate /urisdiction8
i. Lac9 of /urisdiction o)er su,/ect matter was
unclear
ii. .etermination as to /urisdiction was a matter
of law, not fact
iii. Court was limited, not "eneral /urisdiction
i). Nuestion of /urisdiction was not actually
liti"ated
). 1olicy a"ainst court@s actin" ,eyond its
/urisdiction is stron"
6. Thomas ). 5hitman- 1.1ol concern to limit re)iew of
/urisdiction
7. Clar9e ). Clar9e
a. 5ife died and left property in CT, to 9ids and
hus,and in (C, one dau"hter dies
,. %us,and sues in (C for construction of the will- if
(C law is applied, property is split- sues in CT for
distri,ution. CT law that ali)e dau"hter would "et
dead dau"hters share, does not enforce
c. (. Ct- law of the situs applies
d. Contrasts .ur9ee ,3c land@s location is not in
2uestion- /urisdiction was not fully liti"ated. (C
cannot affect real estate in CT
e. Land ta,oo is strin"er then res /udicata- local
interest in land.
f. Is (C disinterested and therefore cannot apply its
own law0
<. +all ). &astin
a. Couple li)ed in E&, owned land, mo)ed to 5A and
"ot di)orced, court awards property deed to wife,
,ut hus,and does not o,li"e
,. Indirect effects are OB, ,ut cannot effect land in
another state- If the decree acts directly on the land,
not the ., it must ,e e#ercised where su,/ect matter
is located.
i). Eon-final decrees
1. 5orthley ). 5orthley
a. .i)orce 1roceedin" in E', then hus,and mo)ed to
CA, stopped ma9in" alimony payments- wife sued
in CA to enforce E' /ud"ment
,. Award was on"oin" o,li"ation, not a final decree
and su,/ect to modification and re-openin" in E'
c. CA has a choice whether to enforce or modify as
lon" as ,oth parties ha)e a chance to appear at a
hearin"
d. Court applies E' law- e)en thou"h it is difficult to
ascertain E' law in CA court
-. Are &2uita,le .ecrees &ntitled to the (ame +ull +aith and
Credit as at law0
a. Common la- e2uity not enforced in same way as
le"al /ud"ments, territorially limited
,. ?ore comple# to enforce then L /ud"ment
c. Inherently modifia,le
d. 1u,lic policy e#ception
6. Lynde ). Lynde
a. +1@( e2uita,le /ud"ments ere not enforced in +--
Court has a choice whether to enforce e2uita,le
decisions
,. +- also does not ha)e to enforce +1@s enforcement
methods, ,ut if they are a)aila,le they should ,e
enforced
7. 'ames ). >rand truc9 RR
a. ?I resident 9illed in ?I, 1 sued in IL
,. . o,tained in/unction in ?I to stop IL suit
c. IL court issued a counter order en/oinin" RR from
enforcin" ?I /ud"ment
d. (tatutes en/oinin" actions in other states are not
entitled to ++C
). &2uita,le .ecrees and o,li"ation to &nforce (ister (tate
'ud"ments
1. a9er ). >?
a. &lwell, a >? employee, had a permanent in/unction
(consent decree$ prohi,itin" him from solicitin" to
testify a"ainst >?- unless he was ordered to testify
in court. &lwell as9ed 1 to su,poena him here.
,. This case was an ?O case, and . o,/ected to
su,poena of &lwell
c. (C held that ?I court order could not ,e enforced
in ?O court- this is enforcement not reco"nition
i. Eo ro)in" 1.1ol e#ception to the ++C clause
ii. There is no distinction ,etween /ud"ments at
e2uity and law.
iii. +- does not ha)e to enforce /ud"ment of +1-
enforcement measures do not tra)el to sister
states as preclusi)e effects
i). 'ud"ment precludes ori"inal parties, here
a9er is a third party, therefore this is claim
preclusion.
d. (ettlement are within the meanin" of ++C ,ecause
of si"nificant in)ol)ement of ?I court for
implementin" /ud"ment
e.
)i. (tate 'ud"ments in +ederal Courts
1. Is this system suspicious of federal power0
a. 4nder what circumstances must federal court "i)e
++C to state court /ud"ments0
,. To what e#tent is Con"ress empowered to le"islate
e#ceptions to ++C o,li"ations0
i. Eational unifyin" force of ++C
ii. Con"ress shall ha)e power to appro)e and
effect ++C0 (i.e. o,li"ation of states to
accept same-se# marria"es of sister states$
-. Allen ). ?cCurry
a. ?cCurry was arrested in state court, e)idence was
suppressed. ?cCurry then ,rou"ht a C1HD6 action
in fed.ct. (C held that this action was precluded
,ecause he was precluded from reliti"atin" a search
and sei*ure 2uestion already liti"ated in state court.
,. App. Ct (o)erruled$ held that since C1HD6 could not
,e ar"ued in state court there was no preclusion-
federal ri"hts deser)e a federal forum
c. 5hy trust the (tate Court0
i. Opportunity to fully and fairly liti"ate
ii. C1HD6 should not ,e a,le to "enerally trump
++C8
1. no e#plicit lan"ua"e3 repeal to
o)erride ++C
-. +ederal remedy should only occur if8
(tate su,stanti)e law is
facially unconstitutional
(tate procedural laws are
inade2uate
d. %ow Could ?cCurry ,rin" his C1HD6 action in
federal court8
i. Eot liti"ate in state court e)er
ii. If there was ne)er a full and fair opportunity
to liti"ate
6. ?atsushita ). &pstein A Con"ressional 1ower to Implement
++C
a. Can a federal court withhold ++C from a state
/ud"ment appro)in" a class action0 Eo, unless
another federal statute partially repeals ++C the
federal court must "i)e /ud"ment the same effect
that it would ha)e in the courts of that state
,. Certification of a class action was within the
/udicial proceedin"s of C1K6D- e)en when a ri"ht is
e#clusi)ely federal3 within the e#clusi)e /urisdiction
of the federal courts does not ma9e C1K6D
inapplica,le.
c. Test8 (?arrese$
i. .oes the law of the state "i)e preclusi)e
effects0
ii. .oes statute "i)e any repeal to C1K6D ++C
(rare$0
7. (ettlement and Claim 1reclusion
a. .efense of ?arria"e Act8
i. C1K6D (c$- speciali*ed amendments- no ++C
to reco"ni*e same se# unions
ii. Con"ress has plenary power to affect laws
of one state o)er another- ++C does not
"enerally apply to statutes, /ust /ud"ments.
!. (pecial (ettin"s and Recurrin" 1ro,lems
a. +ederal (tate Conflicts
i. &rie .octrine
1. &rie R.R. ). Tomp9ins
a. Eo federal common law (not ,ound up in statute$ in
di)ersity cases, apply su,stanti)e law (statutes and
precedent$ of state where court sits.
,. .oes not apply in federal 2uestion A e#cept as
"o)erned ,y statutes or Constitution
c. There is no federal "eneral common law- refers to
all /ud"e made law- too mush of a dele"ation of
lawma9in" authority to /ud"es
d. +ederal Common Law e#ists ,y /ud"es fillin" in the
"aps8 i.e. (herman Antitrust Act, Alien Tort Claims
Act
e. Implications on Choice of Law8 Bla#son- federal
court sittin" in di)ersity does ha)e to apply choice
of law re"ime of the state where they are sittin".
-. (wift ). Tyson
a. Common law contract case. Rules of .ecision Act-
federal court should apply law of state where no
federal law- did not apply to /ud"e made law
,. %eld that federal courts sittin" in di)ersity need not
apply the unwritten law of the state, can de)elop
common law interpretation
c. .isad)anta"es
i. +orum (hoppin"- .iscriminate a"ainst
residents ,y non-residents
1. critici*ed in lac9 and 5hite Ta#i
Ca, ,ut stare decisis was powerful
when dealin" with statutory
interpretation (R.A$
ii. Lac9 of uniformity in the common law-
1. tried to create a center of "ra)ity in
federal common law- did not wor9.
-. differences in law e)en within the
same state.
iii. .ecision was unconstitutional
1. Con"ress nor federal courts had
power to declare the law for the
states. >eneral law ma9in" authority
rests with the states unless there is an
e#press "rant of le"islati)e authority
6. Is there a federalism issue0
a. +ederal Courts ha)e no inherent lawma9in" power
unless authori*ed ,y Con"ress or Courts
,. .i)ersity Clause does not empower Con"ress to
ma9e su,stanti)e law or dele"ate power to federal
courts.
c. Is &rie a limitation on "eneral federal power0
%istorical Interpretation- Rise of realism, political
chec9 on states ri"hts3 federal power.
7. >uaranty Trust ). For9
a. For9 sued >uaranty Trust for self-interest- suit
would ha)e ,een ,arred ,y (OL ,ut federal court
allowed suit, (C re)ersed
,. In e2uity, federal court must use (OL of state where
it sits
c. Outcome .eterminati)e Test- If outcome would
chan"e if use federal law then &rie then use state
law.
i. no lon"er a su,stance3 procedure distinction
ii. this was too ,road- isn@t e)erythin" outcome
determinati)e
d. +ederal court in di)ersity is only another court of
the state, ,ut this was unwor9a,le, ma9es no sense
that federal court must learn - sorts of laws- one for
federal 0 and one for di)ersity.
<. yrd ). lue Rid"e
a. 5C case- .i)ersity8 (hould the case ,e decided ,y
a /ud"e (state$ or /ury (federal$0
,. This is not clear as to whether it is outcome
determinati)e ,ut must loo9 at stron" counter)eilin"
interests (Amend. !II$- alancin" test
c. lunts powerful deference of For9, too little
deference to federal rules
d. R.A- does not "i)e ,road endorsement to state law,
tilt applies only if8
i. 5ea9 federal interest (not federal 2uestions$
ii. Outcome determinati)e
=. %anna ). 1lumer
a. O% resident ser)es .ecedent@s wife in ?A in
accordance to +RC1 7(d$(1$- ,ut ?A re2uired
personal ser)ice, federal law applies.
,. (ince e)erythin" can ,e outcome determinati)e
loo9 at twin aims of &rie
i. .iscoura"e forum shoppin"
ii. Administera,ility
c. This rule is not "oin" to affect how this case is
liti"ated (therefore &rie is the wron" test$
d. Rules &na,lin" Act8 Accords special protection to
+RC1- dele"ates power to (up. Ct. to enact rules of
procedure, forms of process, writs, pleadin"s and
motions for federal district courts- therefore state
law must yield.
e. Is +RC1 )alid0 (If there is a clash for federal law to
apply, it must ,eU$
i. Is it )alid under R&A0
ii. Is it constitutional, could it ,e case as
ar"ua,ly procedural0
K. (i,,ach ). 5ilson8
a. Test for .eterminin" +RC1 )alidity- A rule is )alid
under R&A if a rule really re"ulates procedure- the
/udicial process for enforcin" ri"hts and duties
reco"ni*ed ,y su,stanti)e law and for /ustly
administerin" remedy and redress for disre"ard or
/ustification.
,. R&A must not a,rid"e, enlar"e, or modify any
su,stanti)e ri"ht
D. Test8
a. (tat Law and +RC1
i. !alid under R&A0 If yes, then no &rie
analysis
ii. If (tate and +ederal law- &rie Analysis
H. 5al9er ). Armco (teel
a. In/ury in D3K<, +RC1 suit in D3KK under - year (OL-
under OB law an action is not commenced until
ser)ice
,. Court held that (tate law applied ,ecause this was
not an una)oida,le conflict
c. Clear (tatement Rule8 If there is a direct conflict
,etween a state and federal ri"ht then %anna
applies, if not direct clash then apply federal law
only if it clearly states that it should apply.
1I. urlin"ton Eorthern ). 5ood8
a. Is +RC1 sufficiently ,road as to create direct
collusion with state law0
,. .oes this +RC1 represent a )alid e#ercise of
con"ress@ powers under R&A0
11. >asperini ). Center for %umanities
a. (ued under di)ersity for ,reach. Con)ersion, and
ne"li"ence
,. EF law C<<I1 "i)es power to appellate court to
reduce /ury award if it is e#cessi)e- standard of
:material de)iation;
c. 4sed yrd ,alancin" test of counter)eilin" federal
policies- here, does not completely displace /ury
therefore interest ,alancin" leadin" to compromise.
i. This is a procedural law with a su,stanti)e
o,/ecti)e
d. Amend. !II- ri"ht to trial ,y /ury preser)ed, no fact
shall ,e re-e#amined in any court- :shoc9 the
conscience; standard
i. :(hoc9 the Conscience; std at trial le)el
ii. A,use of discretion std of appellate court
e. (calia@s .issent8
i. Amend. !II would not permit appellate
re)iew A procedural rule
ii. This is not an &rie test ,ecause of
counter)eilin" federal interests and +ed.
Rule should apply
iii. This case contradicts itself, it is not a cap on
dama"es (su,stanti)e$ /ust on re)iew
1-. (emte9 ). Loc9heed ?artin
a. (ued Loc9heed in state court, mo)ed to federal
court for di)ersity, dismissed on merits with
pre/udice on state (OL
,. 1 then sues in ?. state court- . ar"ues that claim
is precluded ,3c of pre)ious action
c. Eo lon"er true that all /ud"ments on their merits are
entitled claim preclusi)e effects
d. +ederal common law "o)erns the claim preclusi)e
effect of a dismissal ,y a federal court sittin" in
di)ersity- no uniform federal rule- must adopt law
that would ,e applied ,y state courts in the state in
which the federal court sits.
i. ?ust ,e no counter)eilin" federal interest
ii. +ederal Courts3 (tate Law
1. Bla#on ). (enator &lectrical
a. (enator- EF, B- .& corp with a contract made in
EF- ( sued in .& district courts to enforce the
contract
,. .& dist. Ct. applied EF su,stanti)e law (1
st
R$ -
re)ersed ,y supreme court
c. Cannot apply federal common law- federal district
court sittin" in di)ersity must apply law of the state
where it sits- treat state choice of law 2uestions li9e
state su,stanti)e law 2uestions.
i. 4niform administera,ility of the laws- there
is no federal choice of law re"ime
ii. 1re)ents forum shoppin"- ,ut federal courts
in different states are not uniform, could
encoura"e 1 to ,rin" suit in certain places.
-. Idea of +ederal Common law for Conflicts8
a. A)oids ren)oi
,. 4niformity- in)ol)ement of federal law
c. .isinterested forum- not o)erly ,ound up with
parochial rules
6. !an .usen ). arrac9- 1ro,lems with Bla#on
a. . see9s transfer to another court and transferee
court must apply the state law that would ha)e ,een
applied if there is no chan"e of )enue
,. (ame rule applies if 1 transfer case (+erens ). 'ohn
.eere$
iii. +ederal Law in (tate Courts
1. Testa ). Batt
a. C-I<(e$ of th &mer"ency 1rice Control Act- may
sue the seller in any court for not more then three
times the o)erchar"e the attorneys fees- can ,rin"
suit concurrently in state and federal courts- filed in
state court,
,. (tate Court only "a)e dama"es for amount of
o)erchar"e ,ecause statute was penal and pu,lic
policy e#ception not to enforce penal statutes of
other /urisdiction3 which is forei"n in the
international sense (Ro,inson$
c. This is an act of Con"ress3 (upremacy Clause of the
Constitution mandates enforcin" 4.(. law- 4.(.
does not ,ear the same relation to states as forei"n
/urisdictions- federal act is the counter)eilin" policy
in e)ery state
d. %u"hes ). +etter- If relati)e to sister state then
should ,e relati)e to federal case.
-. .ice ). A9ron, Canton O Foun"stown R.R.
a. +raudulent settlement of +ederal &mployers
Lia,ility Act, sued in O% state court- '?L no
reco)ery ,ecause O% law precluded award
,. (upreme Court re)ersed- this is a federal 2uestion
to ,e determined ,y federal law
c. O% splits factual issue of fraud split into fra"ments
to ,e split ,etween /ud"e and /ury, determined ,y
federal law
,. International Conflicts
i. &#traterritorial re"ulation
1. Limits of Le"islati)e 'urisdiction in Int@l Law
a. 'urisdiction to proscri,e3 Le"islati)e 'urisdiction8
Authority of state to ma9e its su,stanti)e laws
applica,le to conduct relationships or status.
,. 4.(. ). Funis
i. !iolation of hosta"e ta9in" act, .estruction
of Aircraft Act- certain people on plane
were from 4.(.
ii. . was ne)er in 4.(. territory
iii. Territorial ases for /urisdiction o)er e#tra-
territorial crimes under International Law8
1. territoriality8 where the offense was
committed
(u,/ecti)e- conduct occurs in
the territory
O,/ecti)e- effects felt within
a territory
-. Eational- nationality of the actor-
apply laws where)er in the world
you may ,e
Is there /urisdiction to
enforce0
Conflict ,etween the states
6. 1rotecti)e- /urisdiction ,ased on
in/ury to national interest
Earrow construction-
offenses a"ainst secretary of
state, inte"rity of "o).
functions, (i.e. counterfeitin",
espiona"e, passport fraud$
7. 4ni)ersal8 'urisdiction when
physical custody of . that
committed offenses, impacts entire
world, dan"erous to world order
<. 1assi)e 1ersonal- nationality of the
)ictim
Contro)ersial- (pain@s
application to crimes to
1inochet in Chile-
territorialist attac9s ,ased on
nationalitry
?oderated in usa"e3 resisted
in 4.(.
Eationality must e the tar"et
of the wron"
Nualified application to
serious and uni)ersally
condemned crimes, which
will not raise the specter of
unlimited and une#pected
criminal lia,ility
=. &#pansion eyond Territoriality8
Alcoa-
i. Intent- actor intended
to harm 4.(.
ii. actual &ffects3 not de
minimis
i). Funis was prosecuted under uni)ersal and
passi)e personal
1. 4ni)ersal- Acts were heinous-
)iolations of con)entions that
denounce destruction of airplanes,
hi/ac9in"
-. 1assi)e personality principle-
Americans a,road fli"ht- not
tar"eted ,ecause of 4.(. citi*enship
6. Could this lead to infinite criminal
lia,ility for .(. Citi*ens a,road0
c. ases of 'urisdiction to prescri,e -C7I-
i. 1. 'urisdiction to prescri,e law8
1. conduct within territory
-. person3 interests within territory
6. Conduct within territory that has or
is intended to ha)e su,stantial effects
within territory
ii. Eationality of the Actor- outside or outside
of territory
iii. (ecurity of the state (protecti)e principle$ or
limited class of other state interests
(uni)ersality0 1assi)e personality0$
d. C7I7- 4ni)ersality 1rinciple- Certain offenses
reco"ni*ed ,y international community of uni)ersal
concern (i.e. pri)acy, state trade, hi/ac9in", war
crimes etc$- e)en where none of the elements of
C7I- are present
e. C7I6
i. &)en if C7I- applies, no /urisdiction if
e#ercise of such /urisdiction is unreasona,le
ii. ?ethods to define unreasona,leness
1. lin9 of acti)ity of territory to
re"ulatory state
-. connection
6. Character of acti)ity to ,e re"ulated
important to re"ulatory state
7. /ustified e#pectation
<. importance of re"ulations to
international political, economic, and
le"al system
=. consistency of re"ulation with
traditions of international le"al
system
K. when other state has intent in
re"ulatory act
D. li9elihood of conflict with another
state@s re"ulation
f. Comity- reduce international friction, less then an
o,li"ation, more then charity
i. 1ro,lems with C7I68
1. .oes ,alancin" test lead to
pro)incialism
-. are these factors ,eyond the
competence of the /ud"e
6. Court also ha)e to use le"islati)e
history, e#tra statutory materials,
canons of stat. Construction
ii. +oley rothers 1resumption- Le"islation of
Con"ress, unless a contrary intent appears is
only meant to apply within the territory
/urisdiction of the 4.(., must ,e clearly
stated
1. con"ressional intent O
-. reasona,leness3 comity analysis
". &#traterritorial Application of 4.(. Law
h. &&OC ). Ara,ian Oil
i. 4.(. Citi*en wor9s for Aramco (.& corp$ in
(audi Ara,ia- 1 ,rin"s suit in TM under
state and federal law (Title !II$
ii. .ismissed for lac9 of (?'- Title !II does
not apply to 4.(. employed ,y 4.(.
employers a,road- (.Ct. the act does not
ha)e e#traterritorial application
iii. (tatute is not clear enou"h- ,urden on 1 to
show intent to apply e#traterritorially (use
+oley ros. +or statutory construction$
i). Alien &#ception Clause- does not apply to
employer with respect to employment of
aliens outside any state. 1 uses ne"ati)e
inference ,ut this is too ,road of a reach
employers employin" 4.(. nationals a,road
). Con"ress acted ,y applyin" law
e#traterritorially with statutory lan"ua"e
i. (teele ). ullo)a 5atch- Lanham Act- ,roader
definition of commerce clear enou"h to re"ulate
e#traterritorial application.
/. ?oderation in &#traterritorial Application of 4.(.
Law- direct conflict ,etween 4.(. and +orei"n law
i. Tim,erland-
1. 4.(. law is not e#tended a,road-
'urisdictional rule of reason, ,efore
C7I6@s factors to calculate which law
is applied,
-. Ee)er specifically o)erruled- may,e
C7I6 is currently ,est approach
de"ree of conflict ,etween
4.(. traditions and forei"n
law or policy8
Eationality or alle"iance of
parties, 113 Connections
%ow would enforcement
achie)e compliance- courts
do not want to issue laws
they don@t want to enforce
&ffects on 4.(. and
elsewhere, compared to those
effects elsewhere
Is there a purpose to harm
4.(. commerce (Alcoa test$
Relati)e Importance to
)iolation within 4.(. ).
conduct a,road
6. +orseea,ility of affects
9. O)ercomin" 1resumtion- Laurit*en, Romero-
1olicy choice ,y Con"ress to enact le"islation
-. Antitrust and &#traterritoriality
a. %artford Ins .) CA
i. Conspiracy ,y insurers and reinsurers,
forei"n and domestic, )iolation of (herman
Antitrust Act- ARA?CO does not apply to
antitrust actions
ii. +orei"n Insurers- althou"h acts were lawful
in ritain, they were in )iolation of (herman
Antitrust Act
iii. Comity does not apply ,ecause there is a
true conflict, there are su,stantial affects in
the 4.(.- Alcoa test
i). +or Comity8
1. Is there a true conflict- i.e
proscription in 4.(. ). re2uirement in
4B- here, person can su,scri,e to
,oth laws
-. 1ro,lems8
1u,lic policy e#ception- most
deference to law that is most
different
.on@t want to step on toes of
forei"n "o)ernments
A"reements ,etween nations
may handle conflicts instead
of courts
). (calia@s .issent8
1. Cuts a"ainst application of 4.(. law-
state law o)errides federal law in
insurance minimi*es 4.(. interest in
re"ulatin" conflict. 5or9s
throu"hC7I6 factors.
-. Charmin" etsy 1rinciple8 construe
domestic statutes in li"ht of
customary international law3 stds-
ne)er should ,e construed to )iolate
law of notions if another
construction e#ists- can ,e
o)erridden ,y Con"ress
+oley ros- /urisdictional
C- su,stanti)e law
6. &#traterritorial Reach of the Constitution
a. Reid ). Co)ert-
i. 4niform Code of ?ilitary 'ustice allowed
wi)es of ser)icemen to ,e court martialed
a,road for crimes committed on ,ase
ii. . see9s declaratory /ud"ment that wife is
depri)ed of trial ,y /ury
iii. An e#ecuti)e order or treaty cannot "et out
of constitutional re2uirements- Con"ress and
1resident could not pro)ide for court marital
a,road, could not )iolate free of constitution
i). Cannot depri)e 4.(. citi*en of Constitution
e)en if in forei"n land, e#tra-territorial
effects.
,. 4.(. ). !erdu"o-4r2uide*
i. Citi*en and resident of ?M searched ,y 4(
"o)ernment without a warrant- this is OB
ii. There is no e#traterritorial application of the
7
th
Amend.- e#tended only to :the people;
(e)en thou"h <
th
and =
th
A trial related ri"hts$
1. 1rotects 4.(. people from ar,itrary
actions of their own "o)ernment
-. class of persons with national
community A may not ha)e to ,e a
citi*en ,ut at least purposeful
a)ailment of 4.(. laws (not /ust
prosecution$
6. Insular cases- Constitution does not
apply in unincorporated territory
7. aliens not entitled to <
th
Amend
protection outside 4.(. so)erei"n
territory.
<. .o not want to impede on forei"n
policy implications.
=. Reid does not apply ,ecause 1 was a
4.(. Citi*en in Reid, not here.
iii. Bennedy Concurrence-
1. There is too much wei"ht on :the
people; ,ut here territorial
application would ,e impractica,le
-. (earches and (ei*ures are ,etter
imposed initially ,y political
,ranches- court should re/ect clear
,lan9et of Constitution to ,e applied
e#tra-territorially
6. Amendments must ,e assessed ad
hoc, indi)idually
i). .issent- (hould Constitution ,e applied as a
limit on "o)ernment where e)er it acts, or
should ri"hts ,e specified
c. 7
th
amendment would apply8 (not in !erdu"o$
i. territoriality- searches conducted in 4.(.
ii. nationality- searches directed a"ainst 4.(.
citi*ens re"ardless of location
ii. &uropean 1erspecti)e A Comparati)e 1erspecti)e
1. (ources of Law
a. 4(- approaches, open-ended methodolo"y
,. &ur- ,ri"htline rules in statutes3 treaties, ci)il law
system
c. (wiss +ederal (tatute of 1ri)ate Int@l law8
i. Art. 17- Ren)oi- a"ainst acceptin" reference
,ac9 e#cept when specified, i.e. personal
law
ii. Art. 1K- 1u,lic 1olicy &#ception- must ,e
compati,le with (wiss pu,lic policy, more
fundamental
iii. Art. 11=- characteri*ation chosen ,y the
parties
i). Art. 11K- li9e most si"nificant relationship
test
). Torts- assumption of interest analysis- want
to offer determinati)e rule- more open ended
and escape de)ices- more narrow then
American conflicts law
-. 5. ). ?s. 5-
a. .i)orce in (wiss forum with 4.(. contacts that
mo)ed 11 times to < different countries in 1= years.
,. Rule8 Art. =1- (wiss law applica,le when . spouse
is domiciled in (wit*erland, or 1 spouse is
domiciled for one year, if other common nationality
that law should apply.
c. If common forei"n nationality (wiss law should
apply if forei"n connection is attenuated or sli"ht or
if "reater connection to (wiss law- here (wiss law
applied (si"nificant to ?(R test$
6. Importance of Rules and ?ethods of Analysis
iii. Act of (tate .octrine
1. Courts will refrain from /ud"in" acts of a forei"n
"o)ernment within their own territory
i. Territoriality8 e#traterritorial effects to a
forei"n state action
ii. .iplomacy- to forei"n relations to comprise
with "o)ernments that don@t e)en e#ist
iii. Clear Law- if clear local law prohi,its the
act the doctrine does not apply
i). Con"ressional o)erride of the .octrine-
%ic9enlopper amendment
). &#ecuti)e su""estion- ernstein letter
)i. Eot solely limited to "o)ernment parties,
,. A,stention- this is a ne"ati)e doctrine. If doctrine
applies, courts do not ad/udicate- presumes )alidity
of forei"n act
c. ?ust respect forei"n law- opposite of pu,lic policy
e#ception
d. .octrine at 5ar with itself- federal common laws
created ,y /ud"es- /ud"es can also ,e hostile to
them.
-. 4nderhill ). %ernande*-
a. Act of (tate .octrine in its whole- actions ,y
military commanders durin" a re)olution.
,. Redress of "rie)ances ,y reason of such acts must
,e o,tained of ,y so)erei"n powers as ,etween
themsel)es, i.e. e#ecuti)e action.
c. &)ery state is ,ound to respect the independence of
e)ery other so)erei"n state and the courts of one
country will not sit in /ud"ment of he acts of the
"o)ernment of another country within its own
territory.
6. anco Eacional de Cu,a ). (a,,atino
a. Cu,a nationali*ed property of 4.(. citi*ens in Cu,a.
1ayment was made to the company that had its
property nationali*ed rather then to anco national.
,. Cu,a in)ol)ed act of state doctrine- domestic courts
must presume )alidity of forei"n acts- applies when
forei"n country in its own territory, country must ,e
reco"ni*ed a time of suit in a,sence of treaty.
c. Constitutional underpinnin"s3 separation of powers-
do not want courts interferin" in forei"n relations.
d. The 'udicial ,ranch will not e#amine the )alidity of
a ta9in" of property within its own territory ,y a
forei"n so)erei"n, e#tant and reco"ni*ed ,y this
country at the time of suit, in the a,sence of a treaty
or unam,i"uous a"reement e)en if international aw
is )iolated.
e. Tri""er to Act of (tate .octrine8 official act on
,ehalf of a forei"n "o)ernment, lawful so)erei"nty
ratified ,y state itself.
i. Can ,e imposed on pri)ate parties if there is
a law on the ,oo9s
ii. This is not a prophylactic rule- ,alancin"
test leads to pic9 a forei"n law where there
is a dis"ression.
f. Con"ress can o)erride act of state doctrine
(%ic9enlopper amendment$
". Choice of law8
i. (trict territoriality
ii. O)erride of pu,lic policy e#ception
iii. Connect to international choice of law- hard
to reconcile act of state doctrine with C7I6
(more le"islai)e$
7. ernstein letters- &#ecuti)e ranch su""estions to o)erride
act of state doctrine ,ecause contrary to pu,lic policy- it is
a si"nificant not dispositi)e factor in the analysis
<. 5.(. Bir9patric9 ). &n)ironmental Tectonics
a. Bir9patric9 used a 6
rd
party to ,ri,e Ei"erian
officials to "et a "o)ernment contract- losin" parties
sued 6
rd
party and Bir9patric9
,. (C- no application of act of state doctrine ,ecause
,ri,ery was ille"al- this was an action for dama"es
not upon )alidity of the contract
c. If there is a law in that country ma9in" ,ri,ery
ille"al there is no reason for an act of state
d. Too formalistic to determine le"ality of Ei"erian
e#ecuti)e with Bir9patric9@s act.
e. This case was a death to the doctrine- it has not
,een used in o)er 6I years.
i). Reco"nition of 'ud"ments
1. %ilton ). >uyot
a. - EF citi*ens were sued ,y a +rench firm3
li2uidator (>uyot$ in +rance- /ud"ment a"ainst
%ilton
,. >uyot sued to enforce in EF- (upreme Court would
not allow
c. Comity of Eations- one court "i)es deference to
forei"n decision, not an o,li"ation- here since there
is no reciprocity ,ecause +rench courts would not
enforce 4.(. /ud"ment in +rance, therefore re-
liti"ation of the merits.
i. Induce chan"e of ,eha)ior a,road
ii. +or"oes emphasis on finality to discoura"e
forum shoppin".
d. This is no lon"er controllin" in ?ost states- may
apply if there is some other reason not to enforce
e. Re2uirements to reco"ni*e /ud"ment (dicta$8
preconditions to acceptance of comity8
i. +ull and fair trial
ii. Court of competent /urisdiction
iii. Trial conducted throu"h re"ular proceedin"s
i). Ade2uate notice to defendant (&n"lish$
). Impartial /ustice ,etween citi*ens and aliens
)i. Eo pre/udice in court or system of laws
1. difference ,etween +rench and 4.(.
system will ,e a due process
)iolation ,ut will not ,loc9
enforcement of +rench procedure
-. less demandin" std then international
measure of due process
)ii. Eo fraud in procurin" /ud"ment
)iii. Eo other special reason for denyin" comity.
-. 4niform +orei"n ?oney 'ud"ment Reco"nition Acts
a. ?andatory .efenses ). discretionary defenses-
forei"n /ud"ment is entitled to ++C if certain
re2uirements
i. +orei"n /ud"ment rendered under a system
which did not pro)ide impartial tri,unals o
procedures compati,le with due process
re2uirements
ii. Eo personal /urisdiction o)er the .
iii. Eo su,/ect matter /urisdiction
,. .iscretionary +actors8
i. Eo notice within sufficient time
ii. 'ud"ment o,tained ,y fraud
iii. !iolation of pu,lic policy
i). 'ud"ment conflicts with another final and
conclusi)e /ud"ment
). !iolation of a"reement ,etween parties
)i. Incon)enient forum
6. (emporte#-
a. ritish co sued 1hiladelphia co in 4B- 1hila co
made special appearance to challen"e 1' then
attempted to withdraw, /urisdiction sustained and
/ud"ment entered
,. A,andons reciprocity re2uirement of %ilton- can ,e
enforced in 4(
c. Re2. of full and fair trial is mallea,le
7. Impact of &rie on %ilton8
a. Includes state rule of reco"nition of forei"n
/ud"ment- can esta,lish own rules
,. %ilton a,andons uniformity considerations
c. (tate to state /ud"ment unless federal le"islation.
1u,lic 1olicy- Is it too elastic to ,e meanin"ful0
Fahoo ). La Li"ue Contre Le Racisme
o In a 'ud"ment ,ased on a different type of speech. %ow would we deal
with an interconnected world with free speech issues0
o - +rench nonprofits opposed to nonprofits, sued Fahoo ,ecause Auction
cite allows Ea*i propa"anda.
o Ori"inally +rench Court allowed either +rench citi*ens to ,e denied access
to this material, a warnin" of ,rea9in" the law, and a penalty.
o Fahoo said they could restrict postin" on Fahoo +rench cite, ,ut not full
Fahoo.com.
o ?odified order- Fahoo could ta9e some of the items off.
o Fahoo sued for declaratory /ud"ment that order is not enforcea,le. To "et
rid of all material would )iolate Fahoo@s first amendment ri"hts.
o Court found that yahoo@s first amendment ri"ht outwei"hed comity and
this could not ,e enforced in the 4.(. 1ri)ile"e of +irst Amendment when
it comes to 1u,lic 1olicy.
o There is no less restricti)e alternati)e
o 1u,lic 1olicy defense has ,een limited in ++C cases- no e2ui)alent (a9er
). >?$- 4nder 4niform Act should (upreme Court interpretations also ,e
,rou"ht in.
o .oes a 1u,lic 1olicy ha)e to ,e Constitutional to derail a forei"n
/ud"ment0 5hat else can suffice0 ?ust undermine pu,lic interest or
confidence.
>am,lin" de,t- pro,a,ly not
5hat a,out collusi)e familial issues0 ?ay ,e o)ercome ,ecause of
the family unit
Antitrust issue- (herman Act is less restricti)e- may tri""er 1.1ol
e#ception in tune with (herman Act
o 5hy is this +rench /ud"ment not considered a forei"n act of state0
&)en on its own terms this is a court /ud"ment and act of state
should not apply
Territorial authority cannot wor9 in a "lo,al economy. 5here is
the content e#actly0
o Tachiona ). ?u"a,e
o Contrasts mechanical choice of law of Carroll ). AL
o !ictims of %uman Ri"hts a,use in Jim,a,we- campai"n for )iolence,
sued ma/or political party.
o Case dismissed a"ainst ?u"a,e, "i)es a,solute immunity.
o (ued under Alien Tort Claims Act for Torts, )iolated international %uman
Ri"hts norms
o Choice of Law pro,lem- all acts occurred in Jim,a,we, all parties in
Jim,a,we.
o ?ust insure that case will ,e treated the same way where)er it is ,rou"ht8
a)oidance of forum shoppin".
o 1u,lic 1olicy rhetoric, not final /ud"ment- protect human ri"hts law- court
concerned with o)erridin" federal policy- why is there not a federal
deference.
o This is an act of state ,y ?u"a,e- ,ut does not wor9 here ,ecause of a
clear )iolation of law ,y treaty, not lawful under Jim,a,wean law.
o .epeca"e- issues are ,ro9en up and different laws are applied to each
issue- result orientation :with a )en"ance;
o 4sin" weird sources of law- i.e. law of >uatemala for si,lin" law