Conflict of Laws Outline: Steinhardt, Spring 2007

Stolen part:

THE TRADITIONAL APPROACH TO CHOICE OF LAW

I. SURVEY OF JURISDICTION-SELECTING RULES

A. The First Restatement
1. Advantages
a. easy to apply
b. uniform results
i. discourage forum shopping
ii. *but only works if everyone is using the same choice of law regime
c. predictability
i. especially important in K, where planning is important
2. Disadvantages
a. potential for injustice
b. have to localize the injury (where is your reputation (R says place where statement is communicated)?
What about a defect in mass tort? Where is a trademark? Not always easy)
c. arbitrariness
i. distinctions turn on fortuitous events or nuances
d. simplicity is illusory
i. problems of characterization (which law applies can affect the result), renvoi (state looks to foreign
law but foreign law looks to forum state)
e. *the more rigid the system, the more compelling the necessity to find flexibility and use escape
devices.

B. Territoriality (under the 1st R)

1. 1st Restatement – Beale (author)
a. Huber: wrote how to deal w/conflicts.
i. laws of each state have force w/in the limits of govt. and bind all subject to it but not beyond
(territorial approach).
ii. All persons that live w/in the limits of a govt. are subjects.
iii. Sovereigns, by way of comity will act so that rights acquired w/in the limits of a govt. retain their
force everywhere as long as they don’t cause prejudice to persons beyond the territory.
2. think spatially- Lex Loci: Law of the place of the place
a. where an accident occurred, where the K was made, validity of marriage if valid where vows were
taken, etc.
3. Vested rights
a. rights vest in a certain place when an event occurs there
4. Last event
a. rights vest when the last act creating the cause of action occurs
b. Tort – occurrence of the injury is the last act
i. place of bad act is not where the right vests
ii. there is no right until the injury occurs, so place of the injury is where the right vests
5. Comity
a. alternative basis for forum declining to use its own laws
b. response to the idea that conflicts analysis is an affront to state sovereignty
i. i.e. policy, not power - a state could opt to apply only domestic law, but opts not to out of respect
for sister states
c. too wishy-washy for Beale

1
 i. prefers vested rights as a basis for territoriality
6. Sovereignty
a. Power argument
i. state where rights vest should provide the rule of decision b/c they have sovereign power over acts
in their territory
ii. each state has legislative jurisdiction over events w/in and acts done in its territory

C. Torts – Lex Loci – place of the injury

1. Advantages
A. PROTECTION OF JUSTIFIED EXPECTATIONS
B. PREDICTABILITY – protect justifiable expectations of the parties
c. UNIFORMITY - prevents forum shopping if every court uses the same principals
d. ease of administration
2. Disadvantages
a. where an accident occurs is fortuitous
b. may create windfalls or unduly harsh results not in accord w/ party’s expectations
c. need fairness and justice too, not just simplicity
d. if potential D’s may be subject to the laws of other states, they must conform their behavior to those
states’ laws, not just to the laws of their own state
e. it’s unrealistic to expect a single unified body of state law
i. territoriality only stops forum shopping if everyone uses it

3. Alabama Great Southern RR v. Carroll (Ala 1892), 6 – train owned in Ala, negligently inspected in Ala,
RR ee lives in Ala, accident occurs in Miss – all contacts are with Ala except the place of the injury; Ala
has employer liability law, Miss has fellow servant rule = Vested Rights approach, Miss law applies, P is
non-suited.
a. Court held that state law applies to injury that happens w/in the state = place of injury.
b. Seems like an unfair windfall to employer, who prob. had insurance, but since the accident happened
in Miss pays nothing and employee is screwed.
c. Shows rationale for creating escape devices b/c more rigid system. Here= Characterization- dictates
what substantive law will apply. This could have been seen as a K case.

4. Restatement Sections for Torts

a. § 377 – last event
i. where the harmful force takes effect on the body
b. § 384 – law of the place of the wrong
i. place of the wrong is where the last event occurs § 377
c. § 380(2) – if law of the place of the wrong depends on a standard of care, the standard of care should
be taken from the law of the place of the actor’s conduct
d. § 382 – person required, forbidden, or privileged to act under the law of the “place of acting” should
not be held liable for consequences in another state

D. Contracts
1. Law of K Validity - § 332 – place where K is made
a. If valid where made, valid everywhere
i. “where made” means where acceptance made
b. Questions of: (the law of the place of K determines the validity and effect of a promise with respect
to):
i. Capacity (to make K)
ii. necessary form (if any, in which the promise must be made)
2
 iii. mutual assent or consideration (if any required to make the promise binding)
iv. fraud illegality, or any other circumstances which make a promise voidable
v. Except as state in §358, the nature and extent of the duty for the performance of which a party
becomes bound
vi. The time when and the place where the promise is by its terms to be performed
vii. The absolute or conditional character of the prormise
viii. necessary consideration
c. Advantages
i. easy to apply
ii. contracting parties can reasonably be contemplating the place of making, don’t need to worry about
figuring out everyone’s domicile or something else – easy rule for them to apply
d. Disadvantages
i. ease of application is illusory
 Beale’s famous last words – “no uncertainty” possible about where a K is made
 Beale’s treatise – place of K is the place where the final act is done to make the promise
binding (usually acceptance of the offer)
ii. place of acceptance may be arbitrary, based on nuances of how deal was done

2. Law of K Performance - § 358 – place where K is to be performed

a. Look to the place where the K was to be performed for questions regarding performance such as:
i. manner of performance
ii. time and locality of performance
iii. person by whom performed
iv. sufficiency of the performance made
v. excuses for non-performance
3. Special Provisions for Determining the "The place of Contracting"
a. §312: Formal Contract (where the delivery is made)
b. §323: Informal Unilateral Contract (where the event takes place which makes the promise binding)
c. §325: Informed Bilateral Contract (Where the second promise is made in consideration of the first
promise.)

4. Milliken v. Pratt (Mass. 1878), 17 - P businessmen from Maine, D wife from Mass who signed guaranty
for $500 for credit from Ps for her husband, guaranty executed in Mass and then mailed to Ps in Maine
a. Choice of Law issue: Mass law doesn’t allow women to act as guarantors, Maine law does
b. Vested Rights approach, K made in Maine where P accepted the offer to buy, Maine law applies, P can
collect
c. *also, Mass about to change its law to allow women to K: this shouldn’t be a factor, but seems like it
was.
d. Also, decision kind of makes sense b/c parties prob. would have said they thought their K was valid.

E. Recurring Problems with the First Restatement

1. Localizing the event
a. where did an injury occur
i. where is a reputation harmed? where is a trademark infringed? mass torts where harm is
worldwide?
b. false appearance of simplicity occurs w/ rules like “place where K is made” or “place of the injury”
2. Unfairness
a. Windfalls / Unduly harsh results
i. in Carroll, windfall for the D
ii. also goes to the idea that justified expectations are not being protected in fact

3
 3. Characterization
a. is it a K action or a tort or family law or land taboo?
i. Carroll - tried to argue that the employment K included the employer liability law as an implicit
provision (unsuccessful)
ii. In re Barrie’s Estate – ambiguous whether it’s a land taboo issue or a will issue
iii. LAND TABOO WILL ALWAYS TRUMP if it is in play
4. Renvoi
a. nothing in the territorial approach tells us what to do with renvoi

F. Property – Law of the Situs

1. Land Taboo
a. law of the state where the property is
b. very powerful – IT ALWAYS TRUMPS
i. controls validity and effect of all subsequent transfers, death, marriage, encumberances
(mortgages)
ii. trumps even Full Faith and Credit Clause when land is at stake
c. Rationales
i. power – only the officials of the situs can deal with the land because it is immovable (slightly
circular)
ii. interest – situs state has the greatest interest because the land is situated there (other interests can be
more important, though, as in Barrie’s)
iii. certainty / convenience – keep recording system simple for title searchers by applying situs law in
all situations

2. In re Barrie’s Estate (Iowa 1949), 26 – will leaves property in Iowa to a charity, decedent had attempted to
void the will by writing “void” on it, heirs try to keep the land for themselves; Illinois ct renders valid
jment for the heirs (b/c determined will was void- given to heirs through intestate succession), charity
responds by bringing action in Iowa; Iowa ct applies Iowa law because land is in Iowa (note that FF&C
clause did not require Iowa to uphold the Illinois jment) (either Illinois gets to control land in Iowa or Iowa
gets to control a will in Illinois – both options suck)
a. Conflict: In Il, the will would have been revoked (invalid b/c “void” written on it), in IA it would be
valid. is this an issue of real estate or of the will??? (b/c law of the situs governs land + revocation of a
will is governed by the law of the situs of the land- will determine capacity or incapacity of testator-
Beale)
b. Holding: FFCC does not apply to interests in real estate—and other immovables.
c. Law of situs should control issues of titles, and also validity of all subsequent transfers (by will, etc)
d. IA applies IA law and treats this as property issue. It means a single will or estate of different
decedents is treated to different state laws.
e. Practically—keeps title searches simple.
f. Leases: It's a K w/property interest. K law views a lease as a K, whereas property law views it as a
personal property. Majority of states: Leases are immovables for the purposes of the Choice of
Law.
g. SC buy into this land taboo argument.

3. Problem of Moveable Property

a. Leaseholds – LAW OF THE SITUS for CoL purposes
i. considered IMMOVABLE (and subject to the land taboo) for the purposes of CoL
ii. leases are considered moveable/personal property most of the time
b. when is location determined?
i. why not “at time of litigation”? - because forum shopping is BAD
4
 c. Other moveable property
i. Land Taboo sometimes applies to Moveable Property (law of the situs)
 BUT succession of moveables is controlled by where dead person lived, not the situs
 BUT law of marital domicile controls rights to moveables b/t spouses, not the situs
 Intangible property
 where is intangible property located?
 bank accounts, shares of stock, insurance policies, copyrights
G. Estates, Family Law – Law of the Domicile
1. Domicile Rules
a. everyone has one and only one domicile
b. 2 factors (that must exist SIMULTANEOUSLY)
i. physical presence AND
 must remain for some time, even if very short
 even if address in new domicile is undetermined or ambiguous (so if enter the state and then hit
by a train, new state is still domicile)- but if haven’t yet entered the state- then no new
domicile.
 not including sending a spouse ahead with property and never arriving himself
 if house on border- principal entrance to house = determinative.
ii. intention to remain
 formal declarations of intent rarely respected
 usually no domicile change if move is done by physical compulsion, but can be (think prison
inmates). But if shows an intent to remain- then this is domicile.
2. White v. Tennant (W.Va. 1888), 30 – relatives of decedent suing administrator and widow of decedent,
decedent lived in WV all his life, went to PA with intent to stay there, unpacked, spend half a day there,
went back to relatives home in WV, got sick, died in WV. Issue: where was decedent’s domicile?
a. Conflict: WV domiciliary – widow gets 100%, PA domiciliary – widow gets 50%, relatives get 50%;
b. Ct finds PA domiciliary – his domicile changed when he arrived in PA with the intent to remain

H. Miscellaneous Traditional Rules, 37

1. Marriage
a. § 121 - validity determined by place of the vows
b. § 131 – except when statute forbidding the marriage is interpreted as applicable to the marriage of
domiciliaries in another state
c. § 132 – law of the domicile of either party IF
i. polygamous
ii. incestuous
iii. marriage of a domiciliary which a statute makes void even though celebrated in another state
2. Legitimacy and adoption
a. 1st R § 138: see p. 38
3. Corporations
a. law of the state of incorporation
b. power of corporation to act subject to law of incorporation and law of the act
4. Criminal law
a. Q is usually whether the forum has jurisdiction
b. if yes, lex fori
5. Workman’s Comp
a. lex fori – special tribunals and procedures
5
 6. Divorce
a. highly specialized
II. TRADITIONAL ESCAPE DEVICES
A. Characterization: used by the courts to escape overly rigid application of the traditional rules.
Powerful b/c under the traditional rules, you need to first determine what kind of case this is in order to
determine what law to apply. So, courts can basically use characterization in order to apply the law they want.
1. 1st Restatement
a. offers no guidance to characterization
b. major shortcoming
2. Advantages
a. defensible results
i. allows courts to escape the rigidity of the 1st Rest
b. allows cts to take interests and policies into account
i. “contextualizes” the law
3. Disadvantages
a. problem of predictability
i. without a reliable system, entire 1st Restatement becomes unpredictable
ii. characterization is too manipulable
b. legal fiction problem
i. statutes rarely require K incorporation by their terms; recharacterizing torts as contracts may be
neither fidelity to the statute or the terms of the K
ii. Levy is bad a matter of judicial craft – not faithful to the text of the K or the statute
c. fairness problem
i. doesn’t Levy overcome the “windfall” problem of Carroll?
ii. isn’t Levy fair to allow the P to recover based on the justified expectations of the rental company?
d. intellectual honesty problem
i. isn’t this really just a way for courts to get out of the hard, fast rules of the 1st Restatement when
inconsistent w/ justice or the real interests in the case?
e. legislative prerogative problem
i. may interfere w/ the intent of the legislature that made the laws

4. Tort Recharacterized as K
a. Levy v. Daniels’ U-Drive Auto Renting Co. (Conn 1928), p. 39 – same argument as Carroll but here it
succeeds – Sack rents car in Conn from D, drives to Mass, passenger Levy is injured in Mass due to
Sack’s negligence;
i. Conflict: Conn (place of rental K) statute makes leasing companies liable for harm by lessees,
Mass (lex loci) law does not
ii. Holding: Ct held that Conn law applies by characterizing case as K, not tort, P is a 3party
beneficiary of the rental K, court finds that K incorporates statute by implication (not actually part
of statute).
iii. Purpose of statute: creates an incentive for the car leasing co to be careful in renting (they are the
cheapest cost avoider- in the best position to assess and reduce the risk)= policy based.
iv. What makes more sense here, Carroll or Levy? Prob. Levy b/c the company knows about the
statute and is likely prepared for it w/insurance. (but hard for the ins. Co. to predict how often this
will apply out of state).

6
 Juris MA CT
Facts Accident Common domicle (P, driver, D)
Car rented and forum

L in conflict No liability statute Liability statute

Policies Protect business Compensation, deterrence—
protect business—connects with
the D, and Compensation—the P,
deterrence—defendant

5. Tort Recharacterized as Family Law

a. Haumschild v. Continental Cas. Co. (Wisc 1959), p. 41 – FALSE CONFLICT (b/c all interests link to
wisc)- CA auto accident due to husband’s negligence, wife injured, suit in Wisc of P wife vs. D
husband and his insurer
i. False Conflict: CA law is spousal immunity for tort (marital harmony + community property,
husband would benefit from his own wrong + prevention of collusive suits), Wisc allows such
suits (compensation of injured Ps);
ii. Law: Wisc precedent says lex loci; CA precedent says renvoi to law of the domicile to determine
immunity issues in tort; Wisc ct rejects renvoi (1st R is hostile to renvoi) BUT court
recharacterizes immunity as a family law issue, not tort, which under CA choice of law is
governed by state of the domicile – Wisc law applies, P wins.

Jurisdiction CA WISC
Contacts - accident occurred - forum
- dr bills - domicile of the parties
- insurance obligation
Law spousal immunity no immunity
Policy - marital harmony - compensate the injured
- no windfall for (links up w/wisc)
wrongdoers
- prevent collusive suits
(actually links up
w/wisc. b/c that is where
suit/ins. Co is)
*** would be a true conflict if laws were reversed
b. Preine v. Freeman (ED VA, 1953), p. 44: P’s released 2 of 5 tortfeasors from L through contracts in
Colorado and NY.
i. Conflict: VA law said that where one tortfeasor is released they all are released. NY/CO- no
similar provision.
ii. Court applied law of the place of the tort b/c K was an affirmative defense in tort cases.
iii. But could just have easily characterized this as a K case- and then place of K would have ruled.
c. Caldwell v. Gore (LA 1932), p. 45: D erected a dam on LA prop that obstructed flow of water from
the P’s land in AR.
i. Conflict: Under LA law the obstruction was unlawful b/c there is a natural easement where the
lower estate receives the drainage from the upper estate. Under AR law, the obstruction was lawful
as long as the drainage was reasonable.
ii. Court applied LA law b/c then neither estate is worse off than if they were if they were in AR.
iii. Is this an issue of tort or property??
d. Swank v. Hufnagle (Ind. 1887), p. 45: Ohio woman signed a note for her hubby. Note signed in ohio
on prop. mortgaged in Ind.
7
 i. Conflict: Ohio allows wives to act as surety for their husbands, Ind. Did not
ii. Court applied Ind. Law b/c that’s where land was situated.
 But in Burr v. Beckler, laws were reversed (ie place where K made created the K disability) and
court applied the law of the state where the K was made and invalidated it. Court determined
this was a K question and mortgage incidental.
 But in Thompson v. Kyle, an AL woman tried to secure a debt of her husband’s by mortgaging
property in FL. Court held that the note was invalid but the mortgage was valid.
 Which approach is correct???
e. Cutts v. Nadrowski- Naj. A NJ resident had a bank account in NY and it was stated to be held in trust
for L. N dies and L closes the account and takes the money. The administrator of N’s estate sues L.
i. Issue: is this an inter vivos gift (ruled by the law of the situs) or a testamentary gift (ruled by the
law of the decedent’s domicile)?
ii. Court ruled that it was testamentary and NJ law applied and L was wrong to take the money.
Appellate court reversed and applied NY law under an inter vivos characterization of the account.

6. Substance vs. Procedure Characterization

a. Rules
i. matters of procedure – law of the forum
ii. substantive law – foreign law, as dictated by choice of laws analysis
b. Bases for Distinction
i. statute or precedent characterization
ii. material rights vs. channeling the dispute process
iii. Right vs. remedy
iv. whether it governs primary behavior (external to the courtroom)
v. how burdensome is it for forum to discover and apply the foreign law
vi. is it outcome determinative

c. Grant v. McAuliffe (Cal 1953), 48 – Substance Recharacterized as Procedure: FALSE

CONFLICT – CA residents, AZ accident, suit in CA;
i. Conflict: CA law – actions survive death of tortfeasor (compensation for Ps), AZ law – no actions
that have not been commenced prior to the death of the tortfeasor (fairness to survivors b/c estate
can’t put on D’s best case, docket clearing, unfair to make heirs pay for decedent’s crimes)
ii. Issue: Should survival statute be considered substantive (apply law of where tort occurred) or
procedural (apply law of forum)???
iii. Court found that survival statute = procedural, and recharacterizes from substantive tort to a
procedural matter of wills/estates- so law of domicile- CA applies, P wins
iv. NOTE that 1st Rest and CA precedent deemed this issue substantive prior to the case
v. Argument that this is substantive? It is outcome determinative.
vi. Explanation—all parties are domiciliaries of CA—contacts with CA. False conflict b/c AZ had no
contact with the specific issues in this case—and CA has the burden of survivors.
vii. court says that wrongful death is substantive b/c creates a new CoA but a survival statute doesn’t
create a new CoA so is like a statute of limitations= procedural. Distinguishes Court v. Steen
which held that survival statute was substantive and didn’t apply retroactively- by saying the nature
of the problem determines the characterization. Here this relates to the admin. Of a decedent’s
estate which is generally procedural- so this is procedural.
viii. *under R 584- forum court determines if substantive or procedural.

Jx CA AZ
Facts Forum, place of resident of Accident
all involved, where the
8
 estate is administered
Law Survival (can sue estateAbatement(can't sue
after death) tortfeasor after death)
Policies Compensation—the larger Fairness to the estate
tortfeasor is compensation.
(applies to CA)
(CA) Fairness to the inheritors
Fairness to plaintiff (CA)
(CA also)
Clearing the Docket (CA
concern)
*FALSE CONFLICT = 1) when one of the state’s interests are not advanced, or 2) when the
laws agree.

d. Statutes of Limitations – Substance or Procedure?

i. Trend  SoL are substantive (17 states say so explicitly)
ii. 1st Restatment – generally procedural
 § 603 – statute of limitations of the forum governs
 § 604 – can come into forum and sue even though time barred where suit arose
 § 605 – exception to 604 if the right is conditional on its expiration after a certain period of
time has elapsed
 Forum usually controls.
 In Levy v. Steiger (note case): How to determine substantive or procedural if not covered in the
R? Where the right of action came from regulates the remedy and its incidents (pleading,
evidence and practice). "Tis is elementary that the law of the place where the injury was
received determines whether a right of action exists, and that the law of the place where action
is brought regulates the remedy and its incidents, such as pleading, evidence and practice."—is
this a right/remedy distinction?.

iii. Uniform Conflict of Laws-Limitations Act

 decision to apply substantive law of another state will carry with it that state’s statute of
limitations as well

iv. 2d Restatement
 statute of limitations of the forum governs if it bars the claim
 statute of limitations of the forum applies to permit the claim UNLESS the limitations period of
the state whose law will govern the merits bars the action
e. *also Burden of proof?, parol evidence (substantive)

i. Bournias v. Atlantic Maritime Co. (2d Cir 1955), 55 – Panamania citizen sues D (formerly pan.
Co.) for payment of funds owed under Panamanian Labor act. Dist. court says action is barred by
the Pan. SoL of 1 year.
ii. 2nd Cir. Reverses and P recovers in US ct even though SoL has run in Panama
iii. Court finds that Panama’s SoL statute is procedural because it is general to all causes of action. (so
foreign substantive law
iv. SoL is usually procedural (ie if generally applicable) but, if SoL is bound up in the CoA or
addressed to it specifically then it is substantive. (R 603 and 604 agrees)
v. see also p. 56-7 The Harrisburg (1886): SoL and action created in same statute – so SoL is
substantive and applies: Davis v. Mills (1904), Supreme Ct cases endorsing substantially the same
test as above: is the SoL directed specifically to the right in question? If no- then procedural.

9
 vi. Marie v. Garrison (NY 1883), 60 – WEIRD RESULT from the procedure / substance distinction -
oral K made in Missouri; ct held that NY law said that oral Ks “shall be void”, which is substantive
and thus not applicable to a Missouri K; ct held that Missouri statute of frauds said that “no action
shall be brought” to enforce such a K, which is procedural and thus not applicable in a NY forum –
therefor, the K was valid even though the laws of both states made it unenforceable

How might you go about deciding between substance and procedure?

Substance Procedure
Merits/Rights Remedy
Core elements Common elements
Primary conduct test – affects conduct Affects the litigation conduct (not primary)
outside the courtroom (more likely to be
substantive)
Outcome Determinative Not Outcome Determinative
Hard to Apply Easy to Apply

Joseph Beale: “If the practical convenience to the courts in adopting the local rule of law is great, and the effect of
so doing upon the rights of the parties is negligible, the law of the forum will be held to be controlling. If the
situation is reversed the rule of the forcing law will be adopted.”

B. Renvoi: forum state law refers to other state law to control and the other state’s law refers back to the forum
state’s law. Creates an infinite loop.
1. Definitions
a. Internal law - law that would be applied to a purely domestic case w/o multi-state contact
i. everything but the jurisdiction’s choice-of-law rules.
b. Whole law – law that would be applied to a multi-state case
i. Internal law + choice-of-law rules
c. Remission: when forum’s choice of law rules refer back to forum state.
d. Transmission: when forum’s choice of law rules refer to a 3rd state.
e. Partial: state’s choice of law refers to the state’s internal law only.
f. Total: states choice of law refers to whole law.
2. Advantages
a. uniformity
i. discourages forum shopping because actions are decided exactly as the foreign court would decide
them
b. vindicates the law of the place indicated by the CoL analysis
i. decide the action exactly as court of the place indicated by CoL analysis would have decided it
3. Disadvantages
a. unprincipaled – no consistent rule for application
b. practicality
i. potentially infinite Circular Results
ii. no principaled way to resolve this
 note that when circularity rears its head, forum should just accept the renvoi and use it’s own
law because that answer is as good as any and because the norm is that forums apply their own
laws absent a compelling reason to do otherwise
c. potentially an abdication of sovereignty
i. by allowing a foreign sovereign to dictate what law applies
d. vested rights
i. foreign rules provide the rule of decision only to vindicate vested rights, not for any other
purpose
10
 ii. applying a foreign CoL regime is contrary to this notion
e. policy / expediency theory of territoriality
i. forums only use foreign law for policy reasons or expediency
ii. renvoi should be rejected b/c if the forum deems that a contact with a foreign sovereign requires
the application of a substantive rule, that the foreign sovereign’s courts direct otherwise is
irrelevant
f. HOW TO DEAL W/RENVOI:
i. 1st R: generally rejects renvoi
 Renvoi applies only in cases of land or divorce
 For land  Whole law of where land is
 For divorce proceedings  Whole law of state of domicile
 Everything else  reference to foreign law is only internal law
 Beale: foreign law is only used because rights vest under it, so it should provide only the rule
of decision, not an alternative CoL scheme
ii. 2nd R: presumption to internal law, rather than a rigid rule (can be overcome if consistency is the
forum court’s goal.
 Recognizes renvoi whenever “the objective of the particular choice-of-law rule is that the
forum reach the same result on the very facts involved as would the courts of another state”
iii. Judge can just reason his way through by hearing evidence and determining what the foreign court
would do.
iv. Accept renvoi:
 Grisowld, Goodrich, rabel: should do what the foreign court would do b/c they know what the
rights are
v. Reject renvoi:
 Beale: only foreign substantive law should be applied
 Cook/Lorenzen: foreign rights only vest if that country would recognize and enforce them
 Accept renvoi if foreign state believes the right should be recognize

4. In Re Schneider’s Estate (NY 1950), 61 – decedent was a naturalized US citizen, also a Swiss citizen, died
in NY, property in Switzerland, executor liquidated the land and brought the $ to the U.S.
a. Conflict: under Swiss law heirs get a % regardless of will, under U.S. law will is valid and cuts out the
heirs
b. Swiss law (situs of property) applies under NY CoL rules – whole law or internal law of Switzerland?
– whole law (b/c situs had greatest interest in the land and therefore want to use their choice of law
rules so case would come out the same as it would have if brought in Swiz), it refers back to law of
NY; reference back to NY law – whole law or internal? – internal only (based on NY’s interpretation
of Swiss law)

C. Public Policy
1. Difference in Law is not enough (see Loucks, Intercontinental Hotels)
a. What is?
i. look to State Constitution, public opinion, rhetorical fireworks
ii. ultimately unclear
b. ALMOST NEVER works if forum state’s contacts with the parties/issues are not very strong (see
Holzer)
2. Advantages
a. allows states as sovereigns to protect what is closest to their hearts
3. Disadvantages
11
 a. undermines predictability of the 1st Rest
b. ultimately unclear what will and won’t violate public policy
c. less intellectually honest than IA

4. Loucks v. Standard Oil Co. (NY 1918), 70 – NY forum, accident in Mass (man killed by N of defendant’s
servant)
a. Conflict: Mass law provides a minimum recovery in wrongful death suits – this is basically penal b/c
it is not compensatory (ie recover no matter what), NY has never had such a law
b. Ct says it will presume that enforcement of vested rights does not violate public policy because the
court is only helping the P recover what is his, difference in laws is not enough to establish a public
policy violation (doesn’t shock the conscience)
c. Cardozo: "the courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to
suit the individual notion of expediency of fairness. They do not close their doors unless help would
violate some fundamental principle of justice, some prevalent conception of good morals, some
deep rooted tradition of the common weal."
d. What do courts look to to decide if something is against PP? Constitution, legislative debates,
demonstrations
5. Mertz v. Mertz (NY 1936), 73 – PROBLEMATIC - Conn accident, NY forum
a. Conflict: Conn allows interspousal tort suits, NY has interspousal immunity
b. Conn law should apply b/c under the territorial approach b/c ourt will not apply the Conn law b/c it
is a tort case. But court refuses to apply conn law b/c it violates NY public policy.
c. What policy is that important???? Prevention of collusive suits and encouraging marital harmony
d. KEY seems to be the unwillingness to let the Conn legislature define the capacity of NY residents
to sue in NY cts
e. Crouch Dissent: "The strong public policy which alone serves to prevent the enforcement of foreign
rights must have relation to something which 'in its nature offends our sense of justice or menaces the
public welfare."
6. Holzer v. Deutshe Reichsbahn-Gesellschaft et al. (NY 1938), 75 – P is a German national, D is a German
corporation, D uses Nazi anti-Jewish laws as a defense to the K claim of P
a. Defense is what was offending public policy. The K was controlled by German law, so causes of
action/defenses should be too- and therefore the CoA should be dismissed.
b. Court says that there was no breach of K b/c the D was forced by operation of German law to
discharge the P - Ct has no public policy problem with enforcing Nazi anti-Jewish laws – WHY?
c. Act of State Doctrine: state cts aren’t supposed to sit in jment of foreign sovereigns (tinkering w/ US
foreign policy)
d. No real contacts w/ NY – they feel disinterested- US/NY public policy is not strong and should not
trump.
e. Treat all parties fairly: P is asking to be heard in the forum, but then asking to bar D’s defense and
therefore bar them from being heard by the forum. This isn’t fair: have to either hear both or dismiss
both.
f. *but court says P’s 2nd CoA for being unable to perform b/c in concentration camp might survive.
7. Reconciling Mertz and Holzer:
a. Forum contacts Count: That is what made Mertz work. Mertz involved a NY P and D, and Holzer
German P and D battling over german law.
i. Only when sig. contacts w/a forum should that forum use PP to trump application of foreign law.
b. Sovereigns Deserve Deference: The idea is that a foreign sovereign wins w/in its own territory—it is
fundamental reluctance to pass judgment on foreign sovereigns. AOSD—would still be true in 1950
(Nazi not in power)—no more diplomatic relations perhaps different result. Don’t want to offend
foreign govts.

12
 c. Treat all Parties Fairly: The Ps in Holzer are trying to recover under German Law, but ask Court to
Bar the Defendant's assertion of certain aspects of that same law—not fair to give benefit of forum law
w/out its limitations.

8. MODERN TEST: Intercontinental Hotels Corp. v. Golden (NY 1964), 78 – suit to collect gambling debt;
NY positive law prohibits gambling, but right to enforce the debt in NY ct is upheld
a. narrows the public policy exception after Mertz – mere difference in law is not enough
b. For foreign claim to be denied local enforcement it must be "inherently vicious, wicked or immoral,
and shock to the moral sense."
c. The evidence required: "public policy is not determinable by mere reference to the law of the forum
alone. Strong public policy is found in the prevailing social and moral attitudes of the community."
i. *This is narrow—b/c we live in an age of relativism—ie who says whose laws are barbaric

D. Penal and Tax Laws

1. will not be enforced by foreign courts
a. Involve intimate notions of state identity, thus will not apply the law of foreign state in this area
b. Problem – what is penal?
i. treble damages in antitrust suits?
ii. minimum recoveries? (see Loucks)
2. on its way out as a categorical exception
a. many states have amended by statute
b. particularly, tax claims that have been reduced to jment will now be enforced
c. RICO only applies when another law has also been broken. Would this include foreign law? SC said
no.
d. Pasquantino v US- 2005- another nail in the coffin concerning not allowing other states to enforce
other state’s tax laws.

13
MODERN APPROACHES TO CHOICE OF LAW

I. STATUTORY SOLUTIONS
A. Advantages
1. consistent / uniform
2. easier to apply than caselaw
B. Disadvantages
1. uncommon
2. may not precisely cover every situation
a. legislatures can’t foresee every possibility
b. may thus be no more determinative than case law
3. subject to same escape devices as the 1st Rest
4. what if statutes from 2 involved jurisdictions conflict

C. Foreign Executed Wills

1. 1st Rest
a. immovable property – law of the situs
b. moveable property – law of the domicile at death
2. most states now have statutes validating wills executed outside the state of administration
a. Uniform Probate Code

D. UCC
1. § 1-105(1) – Basic Choice of Law Rule
a. Party Autonomy Rule - when a transaction bears a reasonable relation to this state and another state or
nation the parties may agree that either the law of this state or the other state or nation shall govern
their rights and duties
b. Failing such agreement, this Act applies to transactions bearing an appropriate relation to this
state
c. Other subsections modify these rules in various ways
2. Changes btw 1-301 and 1-105: 1) new rules on transactions involving consumers and non-consumers; 2)
chosen law is not effective "to the extent that application of that law would be contrary to a fundamental
public policy of the jx whose law would govern in the absence of contractual designation."; 3) failure to
select applicable law—previously incorp MSR, now 1-301 says don't apply UCC but to select the
applicable law via the enacting state’s ordinary choice of law rules. (creates more uniformity btw UCC
and non-UCC transaction, and less among UCC across states)
3. Problem
a. Ct must still characterize issues to select the appropriate CoL provision – UCC gives no guidance
on this
i. Skinner v. Tober Foreign Motors Inc (Mass 1963), 94
 shows the characterization problem – p90
b. How do you determine what “an appropriate relation” to the state is?
i. mere fact that it is the forum is not enough

E. No Fault Insurance Statutes

1. claims cover loss regardless of fault and eliminate negligence claims for injuries suffered in traffic
accidents
a. statutes may limit only to accidents in state, may limit to specified persons injured outside the state
b. half the states have some form – problems w/ CoL therefore abound

14
 F. Borrowing Statutes
1. direct forum to dismiss claims under foreign statutes of limitations in certain circumstances – 2/3 of
states have some form of this
2. Which SoL to use?
a. most statutes say “where the cause of action arose/originated/accrued”
b. difficult to interpret this
3. How should they be applied if forum’s own SoL would bar the suit?
a. MOST CTS say the SoL of the forum is the ULTIMATE LIMITATION on the period w/in
which the suit may be brought in its courts

G. Tolling Statutes
1. suspend the running of SoLs against out of state Ds
2. purpose – ensure Ps would not be deprived of a reasonable opportunity to sue b/c a time bar ran while the
D was beyond the reach of service of process
3. If there is a borrowing statute too, does it refer only to the time period, or to the tolling provisions
too?

II. PARTY AUTONOMY AND THE RULE OF VALIDATION

A. Rule of Validation – “implicit intent” of parties is always to create a binding K, therefore apply law of
whichever jurisdiction validates the K
1. Pritchard v. Norton (Sup Ct 1882), 99
a. Facts - P posts appeal bond; D agrees to give indemnity to Pritchard on the bond; indemnity K made in
NY. This appeal bond means that there is a pot of money set aside to compensate thi judgment
creditor for the delay in forcing that judgment.
b. no consideration for the K
c. under NY law – invalid, LA law – valid
d. K was made it NY, so 1st Rest says NY law should govern its validity
e. Holding: apply LA law b/c it validates K and parties presumed to intend K to be valid
i. absent an express law chosen by the parties
ii. regardless of 1st R analysis, there is implicit intent that K be valid, thus apply the laws of the
state which validates the K
iii. + NY really had no interest in the law.

B. Party Autonomy – Contracting Parties should be able to pick which law governs their K
1. Honor express choices of the parties
a. allows parties to make an express choice as to which substantive law will govern their K
relationship
b. parties can and do use different laws for different issues to get the results they want
2. Why this is Good
a. relieves judicial burden of choosing
b. provides for certainty in transactions
c. protects justified expectations of the parties
3. Problems
a. Allows private parties to opt out of state’s regulatory mandates
b. this may even all private parties to do an essentially legislative act
c. may allow creation of a new “law merchant” that is defined by, and thus favors, large corporations (ex
– Ks of adhesion w/ consumers)

15
C. Rejecting the Validity v. Interpretation distinction in Party Autonomy; the Siegelman Test for valid
party choices
1. Siegelman v. Cunard White Star Ltd. (2nd Cir/NY, 1955), 101
a. ticket for QE2 from NY to Cherbourg, France; ticket says English law applies, claims must be brought
w/in 1 yr, and agent’s can’t waive any provisions; wife injured; atty for the D convinces them to wait
out the year before suing, they then sue; Dist Ct dismisses b/c 1 yr is over and agent atty had no power
to waive the provision
b. Validity (minimum autonomy)/ Interpretation (max autonomy) distinction –court rejects it (b/c
really this is neither): English law applies
i. Interp – parties can always choose
ii. Validity – parties should not be able to choose
iii. Policy – Interp allows parties to use CoL clause as a gap-filler by adopting state-law defaults
 allowing parties to decide Law for validity issues would allow them to do a legislative act
and circumvent state regulation
iv. Reject the distinction
 they aren’t usurping judicial function
 they are relieving cts of the burden of deciding
c. TEST for whether parties Choice of Law will be enforced:
i. Validity issues ok to be ruled by party autonomy as long as:
 Choice of law rules chosen in good faith
 Rebuttal it’s a K of adhesion (in this case)
ii. jurisdiction chosen has some connection to the agreement
 here – Cunard is an English company
iii. Implicit Criteria
 no evasion of US policy is attempted
 no contrary public policy
 no suggestion that English law is oppressive to passengers

D. 2d Rest Approach to Party Autonomy

1. Basically Affirms Party Autonomy - § 187
2. (1) – basically, Interpretation Issues (those which parties could have resolved w/ an explicit
agreement) The law of the state chosen by the parties to govern their contractual rights and duties will be
applied if the particular issue is one which the parties could have resolved by an explicit provision in their
agreement directed to that issue
a. Parties can choose
3. (2) – basically, Validity Issues (The law of the state chosen by the parties to govern their contractual
rights and duties will be applied, even if the particular issue is one which the parites could not have
resolved by an explicit provision in their agreement directed to that issue)
a. Parties can choose UNLESS
i. the state chosen to supply the law has no substantial relationship to the parties or the transaction and
there is no other reasonable basis for the parties’ choice OR
ii. application of the law of the chosen state would be contrary to a fundamental policy of
 a state which has a materially greater interest than the chosen state AND which under § 188
would be the state of applicable law in the absence of an effective choice of laws by the parties
 *essentially party autonomy can’t override public policy.

16
 4. Miliken Revisited.
Jx MA ME
Contacts Martial domicile; guaranty Guaranty received (K
executed made) P PPB???
Law No wives as sureties Wives sureties ok
Policies/Interests Protect Debtor wives Protect creditors

E. Rule of Validation and Estate Issues

1. Wyatt v. Fulrath (NY 1965), 113
a. Husband and wife = nationals and dom. Of spain- transferred funds to bank in NY into joint account.
Signed docs saying the law of survivorship from NY would apply to these accounts.
b. Sp. Law- upon death ½ funds given to spouse and 2/3 remainder goes to heirs.
c. Presumptive validity of party choices is at a maximum where planning and reliance is of the
most importance
i. ex – Ks, trusts, estate issues
d. Here, ct applied NY law to validate a will disposing of NY property of Spanish domiciliaries (but only
applies to prop. transferred b/f the husband’s death.
i. Spanish community property law would have invalidated the party’s choices

III. 2D RESTATEMENT – PLACE OF THE MOST SIGNIFICANT RELATIONSHIP

A. Advantages
1. try to get “better results” than 1st Rest.
a. less arbitrary
b. based on a notion of state’s interest in application of its laws
c. still has a rule-based structure
2. Federal Judges LOVE IT
a. apply it more easily than other modern approaches
b. preserves judicial power and discretion
c. good system b/c they can get defensible results w/o committing reversible error
3. Most popular single approach
a. used in 20 states
b. Rules + principals (better than 1st Rest, which has just rules)

B. Problem
1. Cts love it b/c it’s completely amorphous but gives the appearance of structure and principalled,
rule-based decision-making

C. General Structure
1. “Most Significant Relationship” based on
a. Factors in § 6 +
b. Contacts to be taken into account when looking at § 6 factors
2. Dominance of Presumptions
3. gets around RENVOI by referring always to “local law” of the state determined to apply

17
D. § 6 – Choice of law principles
1. (2) Factors relevant to the choice of applicable law include
a. needs of the interstate and international systems
b. relevant policies of the forum
c. relevant policies of other interested states and the relative interests of those states in the
determination of the particular issue
d. protection of justified expectations
e. basic policies underlying the particular field of law
f. certainty, predictability, and uniformity of result
g. ease in the determination and application of the law to be applies

E. § 156 – Presumption of Lex Loci in torts cases, but use § 145

F. § 145 – General principles in tort cases

1. (1) local law w/ the MSR under § 6
2. (2) contacts to be take into account in torts cases include
a. place of the injury
b. place where the conduct causing the injury occurred
c. domicil, residence, nationality, place of incorporation and place of business of the parties
d. place where the relationship, if any, b/t the parties is centered

G. § 188 – Presumption of using the place of negotiation & performance if those are the same, but use §§
186, 188

H. § 186 – Applicable law in K cases – Effective Choice of the Parties

1. law chosen by the parties in accord w/ § 187 (see above)

I. § 188 – Law Governing K issues in Absence of Effective Choice by the Parties

1. local law w/ the MSR under § 6: The rights and duties of the parties with respect to an issue in contract
are determined by the local law of the state which, with respect to that issue has the MSR to the transaction
and the parties under the principles of §6.
2. contacts to be taken into account in K cases w/ no effective party choice include
a. place of K-ing
b. place of negotiation of the K
c. place of performance
d. location of the subject matter of the K
e. domicile, residence, nationality, place of incorporation and place of business of the parties
3. If the place of negotiating the contract and the place of performance are in the same state, the local law of
this state will usually be applied, except as otherwise provided in §189-199 and §203.

J. §195: Contracts for the Repayment of Money Lent:

1. The validity of a K for the repayment of money lent and the rights created thereby are determined, in the
absence of an effective choice of law by the parties, by the local law of the state where the K requires
that repayment be made, unless, with respect to the particular issue, some other state has a MSR under
the principles stated in §6 to the transaction and the parties, in which event the local law of the other state
will be applied.
K. §198: Capacity to Contract:
1. (1) The capacity of the parties to contract is determined by the law selected by application of the rule of
§187-188

18
 2. (2) the capacity of a party to contract will usually be upheld if he has such capacity under the local law of
the state of his domicile.
L. K case – Focusing on the Policies of the Interested States
1. Wood Bros Homes v. Walker (Colo 1979), 221
a. Facts – Contractor is prevented from working on a K’d for job by NM statute that requires
Construction Contractors be licensed; he isn’t paid on the job b/c he didn’t finish, sues to collect in
Colo; performance in NM, K signed in Colo, K negotiated in CA, NM, Colo
CO NM
Contacts Wood (principal base of business)- P and D Services rendered; location of
domicil (Neumaier); signed in CO and some project; some negotiations
negotiations; Forum
Law Would NOT bar the action and the K is NM statute—requires a license—we
enforceable can stipulate Gagnon did not have
(therefore, K not enforceable)
Interests Protect expectations; secure business Safe Buildings; access to courts
environment; rule of validation (ie would pick
the law that would validate their contract)

b. Under 1st Rest

i. characterization would be determinative
 as validity vs performance
 if performance issue, NM law (where K was to be performed)
 if validity issue, Colo law (where K was made)
 as property Q vs. ordinary K claim
 if property, land taboo and only NM could deal with it
 forum issue independent of technicalities of the K?
 NM cts interp their rule as invalidating the complaint and depriving cts of jurisdiction to
enforce
C. COLO CT USES 2d Rest
i. § 188(2) look at contacts
ii. § 188(3) if place of neg. and perf. Are same this state law will apply
iii. § 196 presumption of applying law of state where K will be performed when K is for rendition
of services
iv. use § 6 MSR analysis
 b – policies of the forum
 here, Colo’s Rule of Validation
 apply law of whatever jurisdiction makes the K valid (presumed intent of parties is to make
a binding K)
 c – relevant policies of the other interested states
 here, NM’s regulatory scheme for licensing construction contractors
(1) prevents hazardous buildings
(2) prevenst fiscal irresponsibility from leading to half-done projects
(3) make sure taxes will be paid
d. *this case shows that you don’t just add up the contacts and the one w/the most wins, this is actually
qualitative

19
 M. Tort Case – tediousness of the 2d Rest test, Focusing on the Policies of the Interested States
1. Phillips v. General Motors (Mont 2000), 209
a. Facts: in Phillips the Ps bought a car in NC and then moved to MT—and they got into an accident in
KS. (the writers of the book want to show you how tedious the second restatement can be—it is an
actual case.) There is an agenda here. That is discretion on top of discretion parading as rationale. It is
products liability and brought in MT. Chevrolet pick up trucks has its fuel tanks OUTISDE of the
framewheel.
Juris NC MT KS
Contacts P purchased truck P domicile pre-accident Accident
P domicle post accident Forum
Law Product L law Product L statute
P wants these laws D wants these laws
Policies Protect and compensate Protect K residents
MT residents Protect K businesses
Regulate transactions (neither are implicated)

b. Ct decides to reject 1st Rest and use 2d Rest

c. Apply § 6 and § 145
i. Focus is on the policies of the interested states
ii. Court applies MT law: comes down to the idea that Montana’s policies would be furthered, while
NC’s, Mich’s, and KS’s wouldn’t
d. IA in disguise?
i. no, it is a faithful application of the 2d Rest, but more tedious than IA and less intellectually
honest
e. Does Public Policy Exception Still Work?
i. NO – it is included in the ( c) factor of § 6 (relevant policies of the interested states and the
relative interests of those states in determination of the issue)
ii. would be redundant to have a separate public policy exception

IV. INTEREST ANALYSIS:

A. Advantages
1. intellectual honesty about the search for defensible results
2. fewer arbitrary results than 1st Rest
3. finding false conflicts can be helpful
4. answers the question: why should law EVER be applied if it’s policies aren’t advanced?
B. Disadvantages
1. very post hoc – legislative intent is elusive at best, fictional at worst
a. how do we know what legislators intended? what about differing policy goals (people who voted same
for different reasons)?
2. Deconstructionism challenges the meaning of the text itself (shies away from plain language)
3. IA makes cts look like legislatures, picking what the “better” rule of law is
a. this has a tendency to delegitimize the ct’s actions
4. no definitive rule on WHEN you look at the interests
a. i.e. where D was domiciled at time of conduct? time of suit? time of decision?
b. if time of suit/decision – huge problem w/ forum shopping, encourages Ds or Ps to move as part
of litigation to get a better ruling
5. encourages forum shopping
6. replaces fixation w/ where actions occurred w/ fixation on where parties are domiciled
7. Discontent w/ 1st Rest led to IA  Discontent w/ IA led to a swing back toward Rules and the 2d
Rest
C. Critiques:
20
 1. fig leaf to cover bias of forum for its own law.
2. pro P
D. Curie, founder of IA’s take on IA:
1. tease out false conflicts based on the policies behind the laws that are different b/t the jurisdictions in
question
2. when there is a true conflict, just apply the law of the forum b/c that is easier and don’t have to try to
determine how much in conflict the jurisdictions are
a. *if this leads to forum shopping- that’s ok- this is a tolerable issue
E. Approach: think purposes of the law, policies behind the law

F. Distinguished from 2d Restatement

1. IA has no presumptions (only that laws have purposes and they should try to be furthered)
a. 2d Rest is full of presumptions for a wide range of issues
2. IA designed to get away from characterization
a. 2nd R puts a premium on how a case is categorized.
3. Directness
a. IA is intellectually honest
b. theory is that 2d Rest is good b/c it implicitly applies IA – better to just do so directly

G. Interpretive Approach defines results; CoL in domestic disputes

1. Marek v. Chesny (7th cir, 1983), 188
a. May have to choose b/t 2 domestic statutes too – often they conflict.
b. You have federal statute, for D to pay P’s reasonable atty fees in civil rights suits, and Rule 68 FRCP
for settlement offers (where if D makes an offer and P refuses, and the judgment is not more favorable
than the offer, P has to pay costs incurred after the offer).
c. Posner—said interpret in term of the purpose—1988 (substantive) was meant to bring meritorious
claims, 68 (procedural) might effect incentives. BUT the SC looks to the plain language: applying R
68 in the context of a 1983 action is consistent w/policies of 1988. 1988 encourages Ps to bring
meritorious civil rights suits and R 68 simply encourages settlements. They can coexist. So if P
recovers less than a settlement offer, P cannot recover atty fees from D incurred after the offer is
rejected.
i. look at plain language of a statute gets one result
ii. looking at the policies behing it gets a different result
2. CoL can arise in purely domestic disputes too
3. CoL questions are interpretive questions – approach to interpretation determines results

H. False Conflicts
1. all policies line up with the contacts of a single state
a. one state is interested, the other really isn’t
b. combing out false conflicts is easier than trying to deal w/ true ones
C. FIND THE INTERESTED STATE  APPLY ITS LAW

2. Tooker v. Lopez (NY 1969), 137

a. Guest Statute Case (guests in car can’t sue the driver of the car they were in): Three Michigan
state girls in a girl—and they were in Michigan and a NY resident is driving the car—and there was
car accident—driver killed, another girl in car from NYC killed, and another girl from MI. All three
girls were living there temporarily as students and for one of them it was also their domicile. On NY
side two of them—the D was in NY, and one P was in NY, and the car that was involved was
registered and insured in NYC. NY is also the forum. Did they get the Domicile right? There must be
under White v. Tennant—intention to remain.

21
Jx NY MI
Contacts D Domicile; P domicile Car Accident; temp residency of some P domicile
registered and insured in of one P;
NY; and forum
Law NO guest statute Guest Statute (prevents guest from suing the
driver if they are injured)
Policies/Interests Full compensation (NY) Risk of Fraudulent claims—collusive
lawsuits against insurance agency (NY);
assure NON—guests priorities and access to
assets (nothing); ie guests should NOT be
ingrates and should be forgiving (???)
Connections Concern with Collusive lawsuit is NY
concern
i. policies
 REAL POLICY  prevent collusive suits
 protect drivers from ingrate guests
 prioritize assets to repay people in the other car
ii. sometimes (as in MI here), guest can recover if he proves gross negligence, so the policies are
questionable
iii. here, driver and passenger and forum were all NY  false conflict, apply NY law, ignore MI guest
statute
 other guest from MI can’t recover – seems fair since she’s from MI and it’s MI’s fault she’s
being screwed over
iv. 2d Rest would probably give different result here – center of relationship was in MI, policy of tort
law, domicile, conduct, etc. would all go to MI

3. Schultz v. Boy Scouts of America (NY 1985)(shows IA isn’t always pro-P), 145
a. Molestation of two brothers by Franciscan brother, who was their scout leader, occurred in NY, and
then one boy commits suicide in NJ. Complicated by the fact that torts now happened in two different
places.
b. Conflict: NY doesn’t recognize charitable immunity, NJ does
c. 2 Rules: court distinguishes b/c standards of conduct and rules governing allocation of loss.
THEORY: law of common domicile will be most concerned w/ loss allocation rules.
i. if conduct regulating, law of the state of the conduct
 deter or change behaviors to prevent harm
ii. if loss allocating, law of the common domicile
 these kick in post-hoc – once a tort occurs, who bears the burden of cost/remedy
iii. *so in this case, even though NY has more concern w/standards of conduct, NJ has more concern
w/the allocation of the loss
d. Problem
i. revives characterization problems: could say that charitable immunity is loss allocation but one
of the policies could also be deterrence and therefore is conduct regulation (lack of immunity =
asking charities to be more careful in who they hire)
 so, both cr and la laws act to change behaviors
e. Ct applies law of the common domicile
i. Why apply common domicile?
 Reduces forum shopping b/c law of common dom would be applied no matter where brought
 Rebuts charge that the forum will always apply its own laws
 Be fair to both P and D
22
 ii. Court essentially saying apply common dom. b/c this is a FALSE CONFLICT- but did it get the
domiciles wrong???
 Shouldn’t fransiscan bros be dom. In OH- where decisions are made??
 Shouldn’t boyscouts be dom. In TX where they moved?
 But taking move into account means a D could move to get more beneficial laws
 But, if don’t then more of a vested rights approach
Jurisdiction NY NJ TX OH
Contacts - conduct - conduct -D boy scout HQ -D fransiscan
- forum - P’s dom post case- dom bros state of
-injuries - D BSA dom (later, incorp.- HQ
BSA moved to TX - no
immunity)
- D FB dom
(incorporated in OH,
which has no charitable
immun)
- suicide occurred
Law no immunity for charities have No immunity General
charities immunity immunity, but
for gross N
Policies - deter conduct, even - encourage charitable
by charities organizations and
- compensate injured altruistic conduct
P’s - allocate loss to P
- docket-clearing

f. Could argue that this is actually a true conflict:

i. NY wants to ensure that charities don’t come into their state and perform bad conduct and then run
back to a state w/immunity
ii. Want to ensure that local medical bills from injury are met
iii. *then NY would have applied its own law
g. under 1st R, one brother could recover in NY due to the fact that his injuries occurred there, but the
other brother could not
4. Cooney v. Osgood Machinery Inc (NY 1993), 155

RULE: State A State B

Opposite here P domicile D domicile
If P comes into B, then Recovery No recovery
tough shit

a. Facts: A company in MS that was making some sort of coiled metal—one which had been "Osgood
machinery" which was a NY company. This guy gets injured by this machine and received workers
compensation from the company, so that he could NOT sue the employer under MO law.
b. P then sues D, one of the companies that had owned the machine previously, and then D brings in the
employer as a 3rd party.
c. Conflict: MO doesn't allow for direct claims by the employees once this workers comp scheme has
been paid. NY would allow that contribution.
d. Result: loss allocation statute- go to the Neumeier rules:
i. Neumeier rules originally only applied to guest statutes, band has been expanded to loss allocation
rules (eg vicarious liability or immunity standards), not conduct regulating rules (if conduct
regulating, then law of the place of the injury will apply).
23
 ii. MO – no contribution from employers (shielded from both direct and 3p actions)
iii. NY – allows contribution
e. Neumeier rules:
i. Rule 1 – apply law of common domicile if there is one (theory if common dom – then false
conflict):
 n/a – no common domicile
f. Rule 2 – TRUE CONFLICT rule- look to the place of the accident w/caveats (below)
i. MO rule protects MO party (3pD)
ii. NY rule protects NY party (3p P Osgood)
iii. *SO MO law applies under 2d Neumeier rule – place of accident was also MO
iv. *problem: rule 2 usually applies when D intentionally enters P’s domicile- but not the case here.
But then again, NY law would be unfair b/c employer never did business there.
g. 3d Rule-place of injury
i. would also usually apply MO law (as place of the accident)- should it be displaced by NY law?
 No b/c of uncertainty of the employer

I. NY’s Neumeier Rules – NY CoL regime is these rules supplemented w/ IA (sort-of)

1. Rule 1 – False Conflicts
a. common domicile b/t the host and the guest  use that state’s law
i. these are likely to be classic false conflicts, b/c both D and P are from same state; place of
injury will have nothing at stake

2. Rule 2 – True Conflicts

a. Use the locus of the accident w/these caveats:
i. if D’s state protects D and the accident occurred in D’s state, use that law
ii. if P’s state allows P to recover and accident occurred in P’s state, use that law
iii. example:
 Tooker v. Lopez: accident in MI and P and D from NY. Guest-statute from MI won’t be
applied b/c it’s a loss allocating statute.
 Shultz v. Boy scouts: common dom. In NJ, so NJ law applies
b. rejects “law of the forum” approach to resolution
c. example:
i. A is P domicile and law is in favor of recovery
ii. B is D dom and law is no recovery
iii. If accident is in A- then recovery
iv. If accident is in B- then no recovery

3. Rule 3 – Other Circumstances (other split-domicile cases)

a. use state where accident occurred
b. unless doing otherwise would advance the relevant substantive law purposes w/o impairing the smooth
working of the interstate system or producing great uncertainty for litigants
c. *this is a pretty vague abstraction/ kind of an escape device.
d. Examples:
i. Shultz as b/c NJ P and OH charity, NY law would be the default choice and P would win. But NJ
law was applied and NY law displaced b/c this will “advance the substantive law purposes . . . “

4. Limits
a. Originally applied only to guest statutes in auto accident cases
i. BUT, Schultz and Cooney suggest they can be extended to other contexts
b. apply only to loss-allocation rules, not conduct regulation rules
i. loss-distribution kick in after the event (vicarious liability statutes, immunity statutes, etc.)
24
 ii. example: FL domiciliary talking on cell while driving and gets into an accident in GA. GA law=
talking on cell while driving is N per se. In FL- this is not the rule. If a pedestrian is injured in the
accident in GA. N per se is a conduct regulating rule- so any conflict would be resolved by
applying the law of the place where the conduct occurred.
c. *CONDUCT REGULATING RULES – USE THE LAW OF THE PLACE OF CONDUCT
 justified on IA grounds
 probably an unstable distinction in the long run
5. Key questions:
a. Are these rules or generalizations?
b. Can these rules be extended from guest statutes to every type of tort?
c. Is the basic distinction b/t loss allocation and conduct regulating rules defensible, stable, and useful?
i. *we appear to be back in the world of characterization.

J. The Un-Provided For Case – Law of the Forum OR Better Law?

1. both state’s contacts align with policies of the other state (no state has an interest)

State A State B
P D
pro-D rule pro-P rule

2. Erwin v. Thomas (Oregon 1973)

State Washington Oregon

Contacts Plaintiff; Injury D thomas
accident
Law Husbands Both recover;
ONLY recover; non
favoring discrimination
husband provision
Interst Favor husband Both recover;
(this related to non
D in Oregon) discrimination
(and the P is
met by this who
is in WA)

a. Eriwn was a washington resident injured in Washington by an Oregon resident. Case brought in OR by
Erwin's wife for loss of consortium. Washington does not allow suits for loss of consortium.
b. B/c the interests hook up w/the other state- this is an unprovided for case
c. So: Use law of the forum to deal with unprovided for cases
d. Could also use the better law
i. neither state has anything at stake, so use what you like

K. True Conflicts
1. Each set of contacts lines up with interests from the same state
a. both states have an interest in the contacts that they have w/ the case

State A State B
P D
25
 pro-P rule pro-D rule

L. Resolving True Conflicts

1. Resolved by using forum’s own law [Currie’s default position] (Lilienthal)
2. Lilienthal v. Kaufman (OR
a. Facts: He was a declared a spendthrift by a court and therefore all of his Ks could be voided. So
this statute protects you from yourself. He lived in Oregon, and the person with whom he made
the promissory notes was from CA and had given him credit in CA.
Jurisdction CA OR
Contacts P/creditor; K made; D/spendthrift; forum
K performerd
Law No Spendthrift Oregon Does
statute
Policies/interest Protecting creditors Protect spendthrift;
(CA); protect and his family(OR);
security of Ks (CA); public fisc interests
Secure people from of state (OR)
Fraud (b/c someone
goes around acting
like a spendthrift
around the country)
(CA)

b. Should the obligation to the creditor be voidable, CA or OR?

i. In this case OR policy connects with public fiscal and family in OR, and CA law connects with
creditor.
 Other arguments:
 OR had interest in promoting commerce w/other states
 If rule of validation applied- we would use CA law
ii. Currie argued—if neither juris’ interests are more important than the other, apply law of forum in
true conflict so apply Oregon—forum
c. if forum is totally disinterested, choosing b/t laws of two interested states
i. dismiss for forum nonconveniens (will rarely occur)
ii. use the “more enlightened or humane” law
iii. use forum’s own law provided that it coincides w/ ONE of the interested states
d. makes the most sense if you assume that forum courts normally and naturally apply their own laws,
and should continue to do so in the absence of a compelling reason to do otherwise
e. Criticisms:
i. This ends the rule of validation- applying law of forum discriminates against non-residents-
promotes forum shopping.
3. Currie’s analysis of Milliken v. Pratt:
a. Subordination of interest. Saying constitutional thing to do in True Conflict is apply its own law.
Jx MA ME
Contacts Martial domicile; guaranty Guaranty received (K
executed made) P PPB???
Law No wives as sureties Wives sureties ok (protect
creditors—in ME)
Policies/Interests Protect Debtor wives (MA Protect creditors
related)

26
 4. use the 2d Rest – Most Significant Relationship Test
5. Rule of Validation – K cases only – (Pritchard)
6. try a moderate and restrained approach in interpretation, based on the justified expectations of the
parties, of the policies in play to turn a true conflict into a false one
a. Bernkrant v. Fowler (CA SC 1961), 182
Juris CA NV
Contacts Forum Oral K made here
Domicile of dead man= D’s estate Oral K performed here
P dom
Law Oral Ks not allowed for real estate Oral Ks allowed
Policy Protect against false claims for Protecting people from relying on
estates in CA others to their detriment

i. The P made a contract with a man name John Grandy—the P owed Grandy money and made an
agreement to pay off a portion of the debt and Granrud would refinance, and then agreed to put in
his will that their debt would be forgiven (oral K) and this all occurred in Nevada. P wanted to
enforce this deal—in exchange for G’s agreement to forgive any outstanding debt. Granrud moves
to CA and dies, and then NEVER put it into his will and BERNKRANT wants to be relieved of this
debt, and he is suing in CA.
ii. In CA a deal like this would fall into the Real Estate SOF, whereas Nevada allows this to be a
VERBAL contract. Fowler is putting up as a defense to this action the CA—the point of CA would
be to have the "false assertion" of oral contracts—it is a way of protecting CA estates from false
oral promises. Wheareas, the law of Nevada's policy is trying to avoid people relying on to their
detriment promises like this.
iii. This is a TRUE CONFLICT- NV policies connect w/NV dom and CA policies connect w/CA dom
iv. Holding: The CA court applies NV law—but does NOT apply the law of forum. WHY.
v. This is a K place and all the K making took place in NV.
 All of K actions took place in NV
 Dead man could have moved anywhere: There is also a certainty argument, b/c he could have
gone anywhere and died—more certainty from applying NV then wherever he could have
gone?
 Trying to uphold the expectations of the parties. –Does this go to the weighting of the interests.
Look at pg 184—would make it apply to and therefore validate the contract b/c he went and
died there.
 Court is looking at broad background policies—in this resolution of TRUE conflict—they are
willing to consider policies that are NOT behind the statute in conflict, but state interests and
priorities MORE generally. CA's policy is a "Moderate and Restrained interepration" of the law
in conflict.
 Only CA uses this “moderate and restrained approach”
b. in K cases, look to justified expectations
7. 1st Restatement (Milliken) and/or Neumeier Rule #2 (use the locale of the accident when there is a
true conflict and the accident occurred in one of the states)
a. basically, use the place of the accident / place where K was made as a tiebreaker
8. Comparative impairment (Harrah’s Club)
a. Harrah’s Club (CA SC 1976), p. 186
Juris CA Nv
contacts Forum D dom
P dom
Injured person’s dom

27
 Place of accident
Law Holds tavern L if 3rd party Tavern not L
injured
Policies Ensure full recovery for Protect taverns
victim

i. Facts: Couple, CA residents, went to a club in NV—left overly intoxicated and got into a car
accident with a motorcycle. They went clubbing in Nevada, having seen advertising, and then get
in accident in CA. CA plaintiff was injured in CA, by an automobile driven by another CA resident
and this case is brought in CA.
ii. Choice of Law: Nevada law does NOT allow bars or clubs to be held liable for patrons that become
drunk in their establishments, and CA allows this liability. Which LAW applies here CA or NV?
iii. Court:
 True conflict
 Comparative impairment approach: trying to determine whichever jurisdiction’s interests
are MORE impaired if its policies are subordinated – APPLY THAT LAW
 Comparison
 if apply CA law – NV only a little impaired, they already have criminal liability on the
books for tavern owners in accidents involving 3rd parties and a bit of civil liability won’t
defeat the pro-business environment
 if apply NV law – CA Ps are absolutely deprived of compensation, + NV bar purposely
solicited patrons from CA and thus put itself w/in scope of CA regulatory regime
 Cheapest Cost Avoider
(1) NV can avoid CA law by being extra careful w/ CA patrons, as by checking licenses,
duty existed anyway under NV criminal law
(2) CA Ps can’t avoid NV drunks other than by staying off the roads
 Found that CA law applies, and that is kind of remarkable. The CA court here reverses the trial
court here. The CA rule is applicable to the NV bar.
b. Offshore Rental p.191 (Cal 1978)
i. goal of comparative impairment is to determine relative commitment of states to their law involved
 how rigorously is it enforced
 status of the state rule w/in that state (similar to Better Law approach iin that it makes inquiry
into the status of the rule)
9. 5 choice influencing considerations of Leflar
a. Milkovich
b. predictictability of result
i. more important in K cases, estate cases
ii. consensual transactions where planning is important
c. maintenance of interstate order = false conflicts analysis
i. don’t apply the law of a state that has no interest
d. simplification of the judicial task (mostly procedure v. substance)
e. forum’s interest
f. better rule of law
i. are cts really competent to make this jment? isn’t this the province of legislatures?

28
M. Exam Analysis
1. MAKE A STEINCHART
a. jurisdictions
b. CoL approach of each jurisdiction
c. contacts
i. forum
ii. domiciles
 corporations – principal place of business
iii. place of important events
iv. forum, domicile (including corporations), place of accident/K performance, place of negligent
conduct / making of K, place where bills have to be paid (medical creditors), place where
relationship (K, employment, friendship), where insurance obligation is located
d. relevant conflicting substantive law for each jurisdiction
i. WATCH OUT for ambiguities (e.g. if the SoL for K is one thing, don’t assume it’s the same for
torts)
e. policies behind the laws
i. what interest could the state have had in passing that legislation
ii. look also at how SoL affects the impact of the policy (i.e. would the stat of lim be so short that P
isn’t protected anyway?)
f. Statute of Limitations for each jurisdiction

2. DRAW ARROWS - connect policies to contacts

a. which policy links to which contact?
3. FALSE CONFLICTS
a. if all policies link to contacts with only one state
b. apply that state’s law (don’t want to apply law of disinterested state)
4. TRUE CONFLICTS
a. if policies of state line up w/ contacts of that state
b. arrows don’t cross the center line
5. UNPROVIDED FOR CASE
a. no state has an interest
b. apply law of the forum

29
(B)(5) THE BETTER LAW

I. Leflar’s “Choice-Influencing Considerations”

a. Overview:
i. 5 state courts have adopted it as more than a tiebreaker for true conflicts.
b. Factors:
i. Predictability of Results
1. more important in Ks and wills/estates than in torts
ii. Maintenance of Interstate and International order
1. This factor tends to collapse into the inquiry of whether there is a false conflict or not—
so that if there is a false conflict you are not going to apply the law of the state that has
no interest.
2. Also, (egregious) forum shopping prevention: if p’s game the system too much, this
could lead to interstate tension
iii. Simplification of judicial task:
1. In practice, tends to refer to procedural rather than substantive law
iv. Advancement of the Forum’s governmental interest
1. deterrence of conduct
2. domicile
3. repayment of creditors in the state
4. “justice administering state” notion: don’t want to act in a fundamentally inequitable or
unfair way
v. Which is the Better Law? This is what Leflar’s rules are most known for
1. Problems:
a. is this a legit question?
b. Currie thought courts were incompetent to make this determination
c. Idea of better law is contrary to the notion of co-equal sovereigns in our federal
system
d. What standard can you use to determine what rule is better?
i. Majority v. minority?
ii. Cultural relativism v. natural law notions?
c. Milcovitch v. Saari (Minn), 1973, p. 231: Saari (D) and Milcovitch (P), Ontario residents, went to
Minn. To see a play, Saari, the driver went off the road and Milcovitch, the passenger was injured and
stayed in a Minn. Hospital for 2 weeks.

Ontario MN
Contacts P Dom and D Dom; Car kept, Accident; medical creditors;
registered, and insured Forum
Law Guest Statute; requires Gross No Guest statute
Negligence
Interest/Policies Punish the ingrates (guests Full Compensation
shouldn’t sue hosts); Insurance
Fraud

i. There is a common domicile (Ontario) in this case, which sometimes means a false conflict
and, under Neumeier rules, would be the chosen rule of law.
ii. But, the court says this is a true (rather than a false conflict) b/c the MN interest in full
compensation matches with the medical creditors in MN.
iii. Leflar Factors:

30
 1. Predictability factor- isn’t really used because this is a tort. ***although some courts
will use this because the existence of insurance suggests the predictability of auto
accidents.
2. Maintenance of state order- Both states have adequate interests
a. Not much weight given to judicial simplification
3. Advancement of the forum interest-
a. Full compensation
b. Minn is a “justice administering state” (more of a general argument than one
directed at the guest statute) and wants to be faithful to Minnesota standards of
justice.
c. Deterrence
4. Better Law Analysis-
a. Guest statutes are old and outdated, no state has enacted one recently, they are
interpreted narrowly
b. Saying minn. Law is mainstream, and therefore better
i. Problematic b/c saying that maj. Is right
ii. Sometimes not true, the one to break the mold is actually right
c. Is it legit for a court to make this kind of analysis?
i. NO
1. Seems like state legislatures’ job to determine what law is best
2. The “better law” concept is contrary to our fed. System which
says that states are coequal sovereigns
ii. YES
1. this is what judges do, they need discretion to determine justice,
and if there are inequities in the law, judges should not have to
ignore them.
iv. Dissent- This is a case of forum shopping, says that better choice of law is really nothing more
then a mechanical application of the law of the forum
v. *SC has never said that Laflar is wrong and courts shouldn’t be making these kinds of
judgments
d. Jepson v. General Casualty of Wisconsin (Minn 1994), p. 235: Jepson (lived in Minn. Near the ND
border at time of accident) injured in an auto accident in AZ. Settled w/driver of the other car and
received benefits from the driver of his car’s insurance co. He later brought an action for a declaratory
judgment in Minn seeking benefits under an insurance policy his ND business had purchased from the
D. Whose law applies, should stacking (ie get ins. benefits from more than one vehicle) be allowed?

AZ MN ND
Contacts Accident; Jepson dom Jepson dom (accident); Bought insurance;
(after) forum vehicles reg; corporation
PPB paid premiums
Law Stacking allowed NO stacking allowed
Interests/Policies Applied ND law

i. Minn allows stacking of ins. policies, ND does not, accident in AZ, Jep lives in Minn. And has
contacts in ND.
ii. Court uses Leflar factors and chooses ND law (no stacking)
1. Predictability important b/c insurance K involved (industry depends on predictability)-
and this was a ND contract
2. Maintenance of Interstate order:
a. not a false conflict – concern for sister states / comity
i. application of Minn law would diss ND sovereignty b/c really only
interested party here is the ins. co.
b. forum shopping analysis
31
 3. Simplifying Judicial Task: both rules are easy
4. Advancement of Forum’s interests: forum’s interest favors ND
a. Problem = when do we look to interest- at time of accident, or now (since P
moved)
5. Better Rule of Law: neither rule is better, just different

(B)(6) CoL PROBLEMS OLD AND NEW

I. Depecage: severance of the issues of a case and analyzing them under the laws of different states (hybrid
results)
a. Background:
i. Seen before in substance/procedure distinction
ii. Hybrid results that you could not have gotten under the laws of either juris alone.
iii. When should laws be interpreted in light of each other and not separated by Depecage? When their
policies are linked.
iv. Criticisms:
1. results in a depecage case rest on hypertechnical distinctions- ie Marie v. Garrison
2. results from inconsistent or erroneous application of choice of law rules (ie in interest
analysis, you might just say that the court got the interests wrong)
3. unconstitutional results (violation of DP, P and I clause, etc.)
b. Examples:
i. Accident in British Columbia
1. Facts: P injured in accident and P sued the owner of the car (not the driver)
2. Law: BC had a statute that allowed suit of the owner and had a 1 year SoL; Alaska law did
NOT allow suit of the owner- only driver (but no 1 year SoL).
3. P sued in Alaska for longer SoL (b/c had been more than a year).
4. So, if Alaska law applies, no L, but if BC law applies, time is up.
5. In the end the court broke up the issues and decided that Alaska law would govern SoL,
and BC law would govern L. So P won and got a result that wouldn’t have been able to get
under either state’s law alone.
ii. Marie v. Garrison (NY): Court faced with an oral modification to a K. NY SoF is substantive law
b/c it uses the word “void”- since substantive, doesn’t apply. Missouri SoF- procedural b/c word
used is “unenforceable” b/c it’s about remedies. So, court applied neither and K case was valid A
plaintiff’s claim may fall between two stools and be governed by the CL rather than by the statute
of either state.
c. Imaginary case by Cavers (Principles of preference): Adams v. Knickerbocker Nature Society, p. 245:
i. NY= forum, need to show N, no charitable immunity
ii. Mass= place of injury, strict L, charitable immunity
iii. If only applied the law of either state, then suit would not go forward in either.
iv. P needs SL (Mass) and no charitable immunity (NY)
v. Griswold: 1st R analysis
1. Apply only one law, depecage is absurd
2. Apply MA law, b/c place of injury is only important part
3. CoL is about selecting a juris where rights vested, not about picking b/t rules in conflict
vi. Curie: Interest Analysis
1. Chose b/t laws, not juris
2. Which laws should apply?
a. Charitable immunity- NY b/c forum interest and domicile of charity
b. Standard of L- MA law b/c policy behind is to induce people to register cars
3. So- this would allow a result that could not be obtained by using solely the law of one state
a. Curie says this is wrong, shouldn’t get a result through depecage that wouldn’t
otherwise occur, so
32
 b. Cavers has Curie “break the rules” by reading the laws together (in light of each
other) rather than separately to determine the policies of the laws
i. Then he finds that MA doesn’t really have an interest in S of L- so NY law
should apply in both cases, and P should lose.
vii. Cavers: says policies are totally unrelated so (shouldn’t be read together and) depecage should be
allowed, he is comfortable with the “hybrid” result
1. NY law for denying charitable immunity
2. Mass for SL
d. Maryland Casualty Co. v. Jacek (DNJ 1957), p. 248: Md Ins company, NJ resident, NY accident. Wife
injured. Court applies NJ law to K, NY law to the accident. MD insurer wanted a declaratory judgment
determining its liability under an automobile liability insurance policy it had issued in NJ to D. D in
accident in NY, where wife was injured. NJ spousal immunity, NY no spousal immunity. Following
traditional law (choice of law at the time in NJ) the court found that the K and tort had nothing to dos
w/each other, so separated them and applied NJ law to the contract (place of making) and NY law to the
tort/accident (place of injury) resulting in the insurance company being liable. So hybrid result that could
not have happened in if this were a domestic case in either forum.
i. Critique- court willfully disregarded the policy of both rules- very formalistic. Could also say that
the court got the interests wrong when doing the interest analysis (ie 1st R the characterization was
wrong), and this is an unconstitutional result (due process violation, FF and C, priv. And
immunities)
II. Renvoi: Forum CoL  law of State A + State A’s CoL rules  refers back to forum or to laws of a 3rd State.
a. Renvoi is not an issue under interest analysis (b/c IA looks only to substantive law, and CoL rules are
procedural): disappears b/c foreign law would be applied only when the forum court has determined that
the foreign state has a legit interest in the application of its law and the forum has none. And, only
internal law of the foreign state would be applied. (however, in some cases this is not followed, which
shows how IA doesn’t always work how its supposed to).
b. Pfau v. Trent Aluminum Co. (NJ, 1970), p. 250: P, a CT domiciliary, is a guest in a car when an accident
takes place in Iowa. The car is registered in NJ to the trent aluminum corporation, and the forum is NJ.
Iowa has a guest staute that the host driver is not liable to its passenger guest for negligence. Under CT or
NJ no guest statute and the result would be the same—they would allow the passenger to recover, does the
IA statute apply or not?
i. NJ court uses the Interest analysis—abandoning lex loci—does the IA guest statute apply? Cites
reasons why the IA courts have given—to protect the Good Samaritan; to prevent ingratitude; no
hitchhikers; no collusion—court articulates all of the interest—and it turns out that none of the
policies would be advanced by applying them to NJ defendants. IA is not in the case—so that there
is a FALSE conflict btw NJ and CT, and it doesn't matter.
ii. But, D wants court to apply CT CoL rules b/c CT is the place of domicile of P (interest of CT is to
protect its cit/help them recover). Then under conn CoL rules, it looks to lex loci, so CT would
apply IA substantive law (ie D wins)
1. court rejects this saying that interest is shown through substantive laws, not CoL rules- to
look at procedural law would defeat purpose of IA. IA looks to internal law only, not
whole law (ie law including CoL rules).
iii. NOTE: if there is a true conflict, and the other state in consideration uses the 1st
Restatement and thus wouldn’t apply it’s own law if the case was brought in its cts, many cts
will say that the 1st R state has renounced it’s interest! So sometimes courts using IA DO look
to the CoL rules of another state when assessing states’ interests.
III. Rules v. Standards:
a. Paul v. National Life (WV, 1986), p. 259: The P and D are from WV—the accident is in Indiana, WV
does NOT have a guest statute, Indiana did—but only liable to willful and wanton misconduct.
WV IN
P administrator Place of accident
D administrator
33
Forum
No guest statute Guest statute
 i. Suit for wrongful death, court decides to keep lex loci, 1st R approach b/c “predictable and certain”
RULES of 1st R = appealing.
ii. But then proceeds not to apply the law of the place of the accident on grounds of the public policy
exception (ie uses an escape device)
iii. ODD – they try to be predictable, then invoke the most ambivalent exception out there – they
pretend there are strict rules, but they behave in a less than rule-bound way
iv. Shows that even when judges want to apply rules—they indulge in interpretations that are NOT
rule bound—the more rigid the rules the more arbitrary the escape devices. The more rule like—the
more push back.
IV. Complex Litigation
a. CoL is key to class certification in multistate class actions: they can be made or lost on CoL decisions
b. movant must show that common Qs of law dominate over individual Qs of law
c. if CoL points to multiples state’s laws, the class won’t go forward AT ALL
d. Cts will manipulate the CoL to get a defensible result
i. Ct will often look to the place of the misconduct (i.e. the manufacturing plant of the D or where a
conspiracy was centered) to get a single controlling law
1. sometimes it works, sometimes it doesn’t
ii. Ds have an advantage if Ps must sue separately – they are repeat litigators who get cost savings and
experience as a result of trying the case over and over
iii. Ps may have no other remedy unless there is a class action – may be infeasible to have a zillion
individual suits, claims may be too small individually to justify
e. ALI’s Complex Litigation Project
i. § 6.01 Mass Torts
1. (a) – objective, to the extent feasible, of getting a single state’s law to apply to all
similar tort claims being asserted against the D
2. (b) – Factors
a. place of injury
b. place of conduct
c. domiciles / ppbs of parties
3. (c) – look for states who’s policies would be furthered. If more than one, choose based on
the following rules
a. injury + conduct same place – that state
b. common domicile of all parties – that state
c. common domicile of all Ps + place of injury – that state
d. all other cases, where the conduct occurred
f. KLAXON
i. A federal district court with diversity jurisdiction has to apply the law of the state in which it sits
ii. This applies to the state’s choice of law rules
g. VAN DUSEN
i. Deals with a case transferred from one federal district court to another
ii. Should the new court apply the choice of law rule of the state where it sits or where it’s filed
iii. Traditional rule is that the court to which the case is transferred applies the rule of the state from
which it is transferred
1. Apply the choice of law from the state in which case was originally filed
h. Bridgesonte/Firestone/Ford litigation: P’s from all 50 states
i. Lower court cert. Class holding that the tort and K claims would be governed by the state where
D’s conduct occurred
ii. 7th Cir. Reversed b/c didn’t make sense that only one law would apply to all of the claims- no class
certification b/c laws of all 50 states should apply
34
 i. Tobacco litigation: even larger nationwide clasee
i. Much of the conspiratorial conduct occurred in one state- NY
ii. Certification allowed under NY law- and NY would allow punitive damages
1. court found strong govt. interest in NY, so NY law would apply (want to ensure that we
don’t allow conspiracies that injure many)
iii. *tension b/t Bridgestone and Tobacco- should 1 law apply? Or should 50 different laws apply?
j. In re Air Crash Disaster Near Chicago, IL (7th Cir, 1981), p. 266:

IL MD MO CA DE NY TX OK
Accident; forum; origin; Place of MDC Design; AA AA AA PPB
McDonald Douglas business principle mfr; mcrop principle (2)
Conduct place of destination; place of
business MDC business
coduct (1)
No punitive damages Yes NO No No Yes Yes

i. There was an aircrash after take off near Chicago. The lawsuit here is a MDL (wrongful death
actions brought in many different states)—as this is brought under diversity grounds—then must
look at each state to see which conflict of law applies.
ii. States: IL—forum, and place of accident: MD—place of business; CA; MO: McDonald Douglas
desing location; DE—Airlines location; NY or TX—primary place of business; OK
iii. Main issue: should punitive damages be allowed?
iv. Court’s analysis: looks to each state and its CoL to determine which law would apply.
1. IL suit- looks at MSR w/respect to only McDonnel Douglas (D1)
a. domiciles determined to have no interest in pun. Dam b/c aren’t going to make P’s
whole and D’s don’t have PpoB there, so no need to deter them
b. so only need to look at states where MDC conduct applies (IL, MO, CA)
c. court finds a tie b/t interests of MO and CA – both being strongest
d. then applies IL law (place of injury- interest in preventing crashes) as a tiebreaker
even though interests there less strong
e. under other approaches:
i. 1st R= IL
ii. 2nd R= presumption for IL- unless other state = greater relationship
iii. IA = true conflict, apply law of forum
iv. Neumeyer= place of accident
2. IL suit- looks at MSR w/respect to AA (*each D looked at separately)
a. Domiciles- again no interest
b. So look at NY, OK, TX, IL
c. No state has MSR
d. Apply IL b/c place of accident = default rule
3. CA suits- comparative impairment approach
a. B/t MO and CA- tiebreaker- IL wins
4. NY suits- 2nd R
a. Use IL law
5. MI suits- 2nd R (even though unclear if MI is really a 2nd R state)
6. PR= lex loci
7. HA= ? so use law of forum
v. Court really trying to ensure a single law governs (and one w/punitives)
1. could analogize to depecage
2. seems important for all to get punitives, not just some
k. In re “Agent Orange” Product Liability Litigation (EDNY, 1984), p. 280

35
 i. J. Weinstein ruling, he says he’ll use Fed CL; Ct App reverses - says Fed policies are not at stake-
no fed. Interests in the litigation (even though its all about war veterans and a chemical used by the
military)
ii. J. Weinstein gets it again: he says any state that got the case, their CoL regime would lead them to
Fed CL or “National Consensus Law”
iii. NOTE – there is no Fed CL on this point, b/c the Ct App forbade Weinstein from making any, so
how could states apply it?
iv. What is National Consensus Law?
1. national law created by the convergence of state’s wills
2. would all CoL regimes really point to this?
v. THIS IS BRILLIANT – forces settlement b/c neither Ps nor D have any idea what result “National
Consensus Law” might lead to!

(C) THE CONSTITUTION AND CHOICE OF LAW

I. Limits of Legislative Jurisdiction

a. Possible Problems:
i. Equal Protection, DP, P & I, FF & C
ii. Can a state have so little interest/contact w/a case that applying its law would be
unconstitutional?
b. Constitution tends to provide 2 types of choice of law protections:
i. Interstate Friction: structural (interstate comity); protecting interests of other states; can one
state’s law reach a particular case?
ii. Individual Rights: make sure parties aren’t treated unfairly
c. Is the Constitution a valid check on a forum’s choice of law?
d. Due Process and FF & C as limits on state CoL
i. DP: Individual rights problem
1. is it fair to subject D to the laws of a particular state? Concern = unfair surprise
2. *similar to PJ question
ii. FF & C: Structural problem: concern w/interstate comity
iii. DP and FF&C have largely merged into one analysis:
1. Difference b/t them is not important: merged in Watson and Clay
2. A form of min. contacts analysis: Lang from Allstate quoted in Shutts: “for a State’s
substantive law to be selected in a constitutionally permissible manner, that State must
have a significant contact or significant aggregation of contacts, creating state interests,
such that the choice of its law is neither arbitrary nor fundamentally unfair”
3. 2 Prong TEST: threshold test: state’s interests must be sufficient in order to apply its
own law (from Bradford/Alaska Packers/Pac Employers- reinforced by Allstate and
Shutts):
a. Fairness
i. concern w/ avoiding unfair surprise to a party
ii. quid pro quo – if you get no benefits from a state’s laws, you shouldn’t
be burdened by them either
iii. ex – if you do business in the state, have contacts, etc., should be
subjected to their laws
b. State Interest: forum must have a sufficient interest for rejecting other state’s
law
i. Legitimate (constitutional)
ii. implicated on the facts presented
c. *different contacts can fulfill the 2 prongs – i.e. contact X satisfies surprise and
contact Y satisfies state interest
4. Constitution sets a LOW BAR for Conflicts of Laws decisions to pass
36
 a. DOES NOT mandate a particular regime (e.g. 1st Rest, IA, etc.)
b. if ONLY contact w/ the laws of State A is that State A is P’s chosen forum,
will be insufficient (Shutts)
c. would only prohibit a regime to the extent that it produced results not meeting
the test above
e. Due Process: Home Ins. Co. v. Dick (1930), p. 316: Boat is insured in Mex, insurance K made in
Mex, boat is only covered in Mex waters, policy holder was TX citizen living in Mex until after the
boat was destroyed; boat is destroyed in a fire; Ins K requires suits to be brought w/in 1 yr, clause is
valid in Mex – TX law invalidates clauses of limitation less than 2 yrs; policy holder sues on the policy
in TX. Low court applies Tx law, Sup Court says this is a violation of DP and applies Mex law.
i. Factors-
1. The policy only covered the boat in Mexican waters
2. P was residing in Mex
3. K made and performed in Mex
ii. The court said that a state may prohibit and declare invalid the making of certain contracts
within its borders; and it may also prohibit performance on a contract made else where within
its state boundaries if against the law. But in this case, nothing in any way relating to the
policy or the contract was required to be done in Texas- the law nor the courts were
invoked for any purpose except for bringing the suit. TX may not abrogate the rights of
parties beyond its borders w/ no relation to anything done w/in TX (like vested rights).
iii. Unfair Surprise to D to apply TX law here: they had no reason to expect this
iv. Rationale is IA-like
1. phrased in terms of “public policy”
2. TX has no interest b/c no territorial contacts – K made in Mex, perf’d in Mex, covered
only events in Mex waters, etc.
3. Ct is NOT making the 1st Rest “place of the making rule” a Constitutional mandate
f. Due Process: Dodge v. NY Life Ins. (1918): Court had an opportunity to consitutionalize CoL rules-
saying that territoriality is what counts- but it didn’t.
i. So, Due Process does NOT dictate what CoL regime states should use
ii. Just says that CoL violates DP if the analysis requires application of the laws of a state w/
insufficient contacts
iii. But ? = what contacts are sufficient to avoid a DP violation?
g. Full Faith and Credit: Bradford Electric v. Clapper (SC, 1932), p. 323: VT corporation sent C to
NH and he was killed in NH in an accident there—brought the suit in NH, b/c VT says that they can
only use workman's comp, and NH allows you to choose workman's compensation (unless express
statement made prior to accident) or sue. He was allegedly electrocuted b/c Bradford's negligence.
i. No DP violation here b/c no unfair surprise- interaction b/t employee and employer was in both
VT and NH so min. contacts met.
ii. FF &C
1. FF & C violation to apply NH law b/c can’t have more rights in foreign state than in
home state
2. purpose of FF & C = comity, to reduce interstate tension by respecting laws of other
states
iii. Why does NH have to privilege VT law to the detriment of its own law?
1. NH policies are not implicated on these facts (this is basically a false conflict if we were
using interest analysis)- P and D’s common domicile is VT
iv. Did Bradford Constitutionalize Interest analysis? Is it always unconstitutional for a forum to
apply its own law in a false conflict? In All State Insurance v. Hague—suggests that even if the
forums interest is extremely limited it may still be constitutional to apply its own law—this is
an extreme case that the interest of NH was so extreme that it was not constitutional to apply its
own law. The quantum of proof for an adequate state interest is pretty low. It seems that one of

37
 the reasons for saying that NH couldn't apply its own law is this early understanding of interest
analysis—there is another reason for not allowing NH law to trump VT.
v. Brandeis draws a distinctions btw DEFENSES AND CLAIMS: the court said that when a state
says that you can have a cause of action, doesn't necessarily have to follow that—BUT if you
are using VT law as a defense that is a different matter—if it is not enforced in that state it will
be enforced in the other state—it is ok to stoop plaintiffs—b/c they can get a remedy
somewhere else—D gets a different rule—the state may not refuse to give effect to a
substantive defense—subject the defendant to remedial liability.
h. Full Faith and Credit: Alaska Packers (SC, 1935), p. 325: P lived in CA and made an employment
K w/AP in CA, which said that AK worker’s comp. Laws would apply. P injured in AK and sued in
CA to receive award under CA workers comp. CA law- juris over claims where person is a CA
resident and K mde in CA
i. clause in the K said “AK laws apply”- but CA law says K clauses can’t dictate workman’s
comp awards (ie violates CA law)
ii. forum can apply its own law as long as other state doesn’t have a rational basis to show
superior interest.
iii. TEST: forum should apply its own law unless another state has a superior interest (based on
conflicting interests) = rational basis
1. issue here is there was an express provision in CA law, whereas AK didn’t have an
express provision
iv. Burden of Proof: lies w/the party that wants another state’s law to apply (and tilted in favor of
the forum:
1. creates a balancing test: to displace forum law, have to show foreign state’s interests
are superior
2. employer did not prove AK had superior interests
v. So, CA applied its own law
i. Full Faith and Credit: Pacific Ins. v. Industrial Acc. (SC, 1939), p. 328: injury in CA –issue is
whether statute precludes CA from applying its own workmen's com act in the case of an injury
suffered by a MA employee of a MA employer while in CA in the course of his employment.
i. MA law says it applies outside of MA.
1. FF & C argument: MA statute fixes the employees’ rights w/respect to worker’s comp
ii. Distinguishes Bradford by saying that NH didn’t have a lot of interest, whereas here, Cali has a
lot of interest (and MA interest in protecting business cannot override CA’s interest in
protecting people working in CA).
iii. Court basically rejects the Balancing Test of Alaska Packers
1. Uses a “Threshold” Approach instead: no balancing of the two state’s interests,
JUST “Did CA get above a certain minimum requisite amount of interest?”
a. If so, state can validly apply its own laws
j. Gerling Global Reinsurance Corp. v. Gallagher (Supp. #1)
i. Fl passed an act requiring insurance cos to report info concerning actions during the holocaust.
Act required the insurers who do business in FL to report any legal relationship (fam.
Relationship) w/ins. cos that had policies during Holocaust. 6 related insurance cos affiliated
w/2 German insurance cos- reported some info, but not all. Govt. sent them subpoenas for
more info. Ins. Co. challenged the reporting requirement based on DP. Fl. Co’s seen as
subsidiaries and did not have the docs being requested.
ii. TEST: does the state have a significant contact or significant aggregation of contacts creating a
state interest, such that the choice of its law is neither arbitrary nor fundamentally unfair?
1. Like PJ, but Differen: here, the company is w/in PJ of the state, but not w/in the
legislative juris of the court.
2. Look at relationship b/t the state and the subject matter (the transaction)
a. Transactions were b/t German companies and people in germany at the time
i. *but could argue that Fl people were affected, so that is an interest
38
 iii. SC- ultimately decided issue re the foreign affairs power of the pres
1. *but basically FL didn’t have sufficient contacts to apply its own law.
k. Convergence: Allstate Ins. v. Hague (SC, 1981), p. 336: the decedent died of injuries that occurred in
WI, immediately across border of MN—passenger of motorcycle—the operator of the Vehicles was
WI as was owner—the decedent was from WI—. Neither of the drivers had insurance—but decedent
had policy from Allstate—which maxed out at $15,000. After death, decedent’s wife, plaintiff moved
to MN—and married someone (doesn’t seem it was for better forum), the MN probate court has
appointed her the representative of the decedents estate—she sues allstate seeking a declaration that
she could stack the policies. Defendant doesn't want it stacked—and argues that MN should apply.
i. SC used the Leflar test—used the 5th factor—the BETTER law—surveyed the states—and
showed that Stacking was better—also stacking allowed cost to spread more easily through
premiums—it was a contract of movable items, and there was no DP problem.
ii. Even though decedent had only a few contacts w/MN, they were enough to apply MN law:
1. 15 yr. Member of MN workforce- state has interest in ensuring safety of its workforce.
But what does this have to do w/auto insurance?
2. Allstate doing business in MN- therefore no unfair surprise. But is there unfair surprise
on these facts?
3. Doesn’t appear to be forum shopping by moving to MN.
iii. The 2 Prong Analysis of Allstate
1. Fairness
a. Is D Allstate unfairly surprised on these facts?
i. NO – he lived on the border, it’s a car so it goes from place to place,
Allstate does lots of business in states that allow stacking
ii. But maybe Allstate only planned for a certain # of cases to be brought in
stacking states
2. State Interest
a. legit interest in fully compensating residents
b. legit interest in regulating Allstate’s insurance obligations as they apply to
people w/ contacts w/ Minn
iv. Dissent – this is crap: the contacts cited by the maj are irrelevant to the K at hand: supports
making DP and FF&C analytically distinct.
l. Convergence: Shutts v. Phillips Petroleum (SC, 1985), p. 346, Phillips leased mineral rights from
3000 individuals—suit on behalf of all Ps brought in KS—KS court applied KS law to gas leaks and
all issues of the case. 100s of the KS plaintiffs were affected—but 99% of the leases involved had NO
connection to KS whatsoever
i. SC reverses:
1. language from Allstate – “for a State’s substantive law to be selected in a
constitutionally permissible manner, that State must have a significant contact or
significant aggregation of contacts, creating state interests, such that the choice of its
law is neither arbitrary nor fundamentally unfair”
2. State interest in Procedural Efficiency not enough
3. KS had an insufficient state interest in the parts of the class w/ no connection to KS to
apply its own law
4. *although Phillips (D) w/in PJ of the KS court, the case not in legislative juris of KS re
all of the leases
ii. result= suit that could have been a nationwide class action broken into 50 small suits
m. Notes:
i. Watson: forum allowed to apply its own law. Product L case (bad hair day)- product purchased
in LA and forum allowed to apply its own law even though state where ins. co. was from said
wasn’t allowed. Allowed b/c P is a resident of LA, purchased prod. There and interests of state
= implicated.

39
 ii. Clay: forum allowed to apply its own law. Fl. Ct applied 5 year SoL to an ins. dispute, even
though the K limited claims to 1 year. SC merged FFC and DP and said they were satisfied b/c
insurer did business in Pl and even though P moved there, the ins. was for loss anywhere and P
is a domiciliary of FL.
n. Franchise Tax Board of Cali v. Hayatt (Supp p. 15): This is an action by the state of CA against Mr.
Hyatt—he was a resident of CA—but then moved to NV shortly before receiving a large fee paid to
him—b/c he paid a lot of patents on computer technology. He argues that b/c he left CA, he should
only be assessed for a certain amt of taxes—the CA tax board does a complete audit of him and
disagrees. CA has a law saying tax board is immune from suit- not liable for an act or omission for
applying any tax law –mother of all immunity statutes.
i. Question can the NV court ignore the immunity statute in CA? Court says Yes, NV can deny
that immunity—and hold judgment against CA- does not offend FF & C or DP.
ii. How is this right? Court says that CA is reaching into NV and picking on a NV resident and
therefore they have gone too far and NV is allowed to ignore CA’s statute- had CA just stayed
home- NV wouldn’t be able to do this.
iii. *symmetry to Nevada v. Hall- where CA ignored a NV cap on tort damages, now NV is
sticking it to CA.
iv. NOTE: SC has essentially merged DP and FFC and really only applying one standard for
both (don’t worry about label- look to the contacts and the test)
CAN THE FORUM CONSTITUTIONALLY APPLY ITS OWN LAW?
NO YES
Home Insurance – due process challenge (individual Alaska Packers- adopts a balancing test w/ the
rights and unfair surprise)- (Bradford) FF&C presumption that the forum law is applied
prohibits NH from applying NH law
Bradford- FF&C can limit the law that the state can Pacific Employer "threshold" rather than balancing
apply test
Gerling- need to look @ the state’s interest and it Allstate Ins. v. Hague
must be legit
Phillips Petroleum v. Shutts Watson
Hughes v. Fetter Clay
Tennessee Coal v. George Franchise Tax board of CA v. Hyatt
SC of NH v. Piper Nevada v. Hall

II. The Obligation to Provide a Forum: if one state provides a cause of action, must another provide a
forum?
a. Hughes v. Fetter (SC, 1951), p. 356: Car accident in IL—suit is brought in WI under the IL wrongful
death statute—All the parties are residents of WI—BUT the WI court said we are not going to hear this
COA—b/c WI statutory law established a policy against hearing suits based on foreign based wrongful
death actions.
i. Holding: the SC held 5-4 that WI was required by the Constitution to open its courts to this
action
ii. Under FF &C
1. The IL statute was a public act that required FFC from sister states
2. It would not be ok for WI to apply its own law here, b/c the FFCC obliged it to at least
hear this COA.
3. EXCEPTION: forum does not have to hear a case if has “real antagonism” to the CoA
(or if it is a forum non conveniens)
a. problem: what is “real antagonism?”
i. maybe if polar opposite
ii. does absence of law count?
iii. Doesn’t this encourage states to be hostile?

40
 iii. Different than Alaska Packers and Pacific Employees b/c court says those cases dealt
w/substantive rights rather than procedural issues- as in this case.
1. Steinhardt: We will subject to strict scrutiny laws those that promote a state’s
objectives by withholding jurisdiction from foreign courts, whereas laws that promote a
state’s objectives by defining parties’ substantive rights in more particular ways get
more deference under FF&C & will get scrutiny under a rational basis
2. In Alaska Packers and Pacific Employers, the Court found that there was a rational
basis
iv. *prob. the real issue here is discrimination against foreign causes of action- w/out it, prob. no
FF&C violation
b. Tennessee Coal, Iron, and RR Co v George (1914), p. 363
i. Ala law makes employer liable if employee is injured due to defects in work environment
(machines, etc.); law also provided that suits had to be brought in Ala, not elsewhere; P is
injured in Ala but brings suit in Georgia state ct; D defended on grounds that Georgia was req’d
by FF&C to honor the Ala venue provision and refuse to hear the case
ii. Procedural Venue restrictions need not be given FF&C, only substantive law
1. is the forum limitation “wrapped up” in the substantive right? If so, linked and you
can’t get one w/out the other, so both = substantive (depends on how statute was
written- may not even be correct b/c can’t legislate extraterritorially).
a. Not the case here- so Georgia not obligated to refuse to hear the case
III. Unconstitutional Discrimination in Choice of Law

a. Art IV § 2: “citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several States”
i. applies only to privileges and immunities bearing on the vitality of the Nation as a single
entity (Baldwin v. Montana Fish & Game Commission)
1. discrimination in recreation – not prevented
2. refusal to give o-o-st. resident a fishing license – probably OK
3. right to earn a living – important enough that discrim is prevented
4. commercial fishing license – NOT OK
ii. Problem – when is an interest fundamental enough?
1. why isn’t fundamental right to interstate travel burdened by liability under a NY guest
statute applied to a non-NY accident w/ non-NY Ds?
iii. Problem – does P&I undermine IA?
1. NO – Interstate Comity is a substantial interest
2. shaky relationship though – P&I limits the application of a state’s law on the basis
of domicile
a. cts using IA substantially rely on where parties are from
3. IA has been used by cts for 30 yrs and no ct has ever held a CoL decision unconst under
either P&I or EqP
b. SC of NH v. Piper (SC 85), p. 367: Facts: a woman who lives near the border of VT, but would like to
practice law in NH—and she would like to take the bar exam in NH—but the state of NH limits bar
admission to residents of NH. She is challenging this law under the privileges and immunities clause of
the constitution
i. P and I clause: "citizens of each state shall be entitled to all privileges and immunities of
citizens in the several states."
ii. The purpose of this was to create national unity, so when cross state lines, still have same
rights.
iii. What is a “fundamental right” under P&I?
1. right to pass through, reside in another state for trade, agriculture, other professional
pursuits
2. habeas corpus
41
 3. institute and maintain CoAs in courts of the state
4. take, hold, and dispose of personal/real property
iv. court says right to do business should be included
1. something special about lawyering? YES- they have a role in championing cases that
are unpopular and enforcing “federal rights”- especially as non-locals.
v. *if a federal interest is served by mobility, then it is likely that the P&I clause will invalidate a
restriction
vi. P&I Test: P&I does not preclude discrim against non-residents when:
1. There is a substantial reason for the difference in treatment/discrimination, and
2. The discrimination against non-residents bears a substantial relationship to the state’s
objective
a. *court considers if there are less restrictive means available

(D) RECOGNITION AND ENFORCEMENT OF SISTSER-STATE JUDGMENTS

I. Res Judicata: (Giving full faith and credit can be wimpy, but once a judgment is final, it has teeth)
a. Policy of Finality
i. Puts an end to litigation (rather than having it go on and on forever)
ii. Minimize judicial energy devoted to individual cases
iii. Establish certainty and respect for judgments
iv. Ensure payment of awards
v. Protect the party relying on the prior judgment from vexatious litigation
b. Direct and Collateral Attack
i. Direct Attack: timely appeal to a higher court in the same juris
ii. Collateral Attack: subsequent litigation that raises an issue concerning the binding effect of the
earlier litigation
1. ex: challenge the PJ of F1 over D when a suit for enforcement is brought in F2
c. Claim Preclusion:
i. Precludes further suits on the same cause of action after a final judgment
ii. Claim is barred by a judgment for D
iii. Claim is merged w/a judgment for P
iv. Forbids relitigation of matters actually decided b/c no assurance that a second decision will be
more correct than the first
v. Will often preclude issues that could have been, but were not, litigated in the first suit
vi. Judgments from in rem or quasi in rem proceedings may have a more limited effect- reducing the
ammt due, but not extinguishing the underlying claim
vii. Parties in both litigations must be same or in privity for preclusion to occur
viii. Equitable exceptions:
1. an original judgment is not merged in a second judgment rendered in an action to enforce it;
the P may bring suit on either the original or the second judgment until she obtains
satisfaction.
d. Issue Preclusion:
i. Deals with situations in which issues determined in previous litigation were:
1. (1) fully and fairly litigated by the parties
2. (2) actually determined by the tribunal on the merits
3. (3) the issues were necessarily determined
4. *between the same parties
a. sometimes non-mutual issue preclusion is allowed
i. party against whom used must have been a party in the original action
ii. person subsequently using the finding is relieved from the requirement that
she would have been precluded by an adverse determination.
5. *cause of action in the subsequent suit need not be the same.

42
 ii. If the judgment is not on the merits (ie dismissal for want of juris), the claim may be brought
again, but Direct estoppel forecloses relitigation of matters that were actually decided
iii. Collateral estoppel gives preclusive effect to essential findings necessarily determined (in an
earlier litigation) in a subsequent litigation on another cause of action between the same parties.
iv. Issue preclusion= both broader and narrower than claim preclusion:
1. broader: b/c the cause of action need not be the same
2. narrower: b/c issue preclusion extends only to essential issues of fact that have been
actually litigated and determined.
e. EXAMPLE: Default judgments: they have claim preclusive effect, but have no issue preclusive effect
b/c not decided on the merits
II. Full Faith and Credit to Judgments of Sister State’s Courts:
a. FF&C Clause – Art. IV § 1: “Full Faith and Credit shall be given in each State to the public Acts,
Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe
the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.”
b. 28 USC §1738: "The records and judicial proceedings of any court of any.... State, Territory, or Possession
of the US (F1) ....shall have the same full faith and credit in every court within the US and its territories
(F2) and Possessions as they have by law or usage in the courts of each State, Territory, or Possessions
from which they are taken."
c. FF&C to Final Judgments, Even if the F1 Decision Was Based on Mistake
i. F1 gives judgment
ii. F1 law also determines the effect of judgment in F2 (statutory choice of law)
iii. F1’s laws define the measure of FF&C (Yarborough)
iv. 28 USC §1738 also supports that F1’s law applies for determining FF&C obligation (Yarborough)
v. DEFENSES OF FF&C (pockets of policy that may qualify FF&C)
1. Divorce
2. Custody & Support
3. Tax Judgments
4. Penal Judgments
5. Workers Comp
6. Real Estate
7. DOMA??? Gay/lesbian marriage
d. *some states have adopted the Uniform Enforcement of Foreign Judgments Act: provides summary
proceeding to enforce sister-state judgments
e. If F1 issues a declaratory judgment and F2 doesn’t provide for them, F2 doesn’t have to enforce the
judgment b/c a juris doesn’t have to adopt relief that it doesn’t provide for.
Is it consistent w/FFC for F-2 to reopen F-1’s judgment?
NO YES
Fauntleroy: F1’s mistake about F2 law not enough- Thomas (1980)(worker’s comp)
shifting power of FFC- creates incentives to appeal
mistake in F1.
Yarborough: F1 law determines the res judicata effect of McCartin (1947) difference here is the intent of the IL
the judgment in both F1 and F2- see URESA litigation – allowed to re-open b/c there is unmistakable
language allowing it
Magnolia (1943): cannot recover after judgment in F1 Clarke- land in F2 (qualified by Fall- fall gives an escape
for workers comp device- indirectly affecting title = ok. So then claim that
the F1 judgment works indirectly and you get what you
want in F2- some juris now though actually recognize
foreign decrees on land- reciprocity on their own)
Durfee v. Duke: jurisdictional judgments (cf. Thompson- Worthley- non-final or modifiable judgments
inquiry ok)
Baker

43
f. Fauntleroy v. Lum (SC, 1908), p. 481: 2 residents of MI enter into a K in MI- illegal in MI b/c didn’t
allow gambling in futures. The 2 then go to arbitration in MI and determined the outcome. Then tried to
have the judgment enforced in MI- but court dismissed case b/c K illegal. Then case taken to MO, and
MO enforces it (though shouldn’t have). P’s atty then goes back to MI to get the MO judgment enforced.
MI court refuses b/c initial arbitration not valid under MI law – MO made a mistake in interpreting MI law
and enforcing- so MI would not enforce.
i. SC says MI cannot ignore the MO judgment, and must enforce, even though there was error.
1. Reasoning:
a. Once a jmt is final within F1, that jment has to be respected by all other forums
b. even if the F1 jment was based on a mistaken application of F2’s law
c. even if F2’s law was misapplied in bad faith by F1
d. even where F2’s clearest policy and laws are at stake
2. Policy:
a. *difference b/t refusing to hear on the merits, and refusing to hear b/c of juris. (if F1
didn’t have juris over the person/case- could be a good reason not to give FF&C)
b. We want mistakes to be corrected w/in the chosen forum (ie appellate courts)- not
through a different forum- would be really messy if always taking cases to a new
juris. To see if there was a “mistake”
c. Occasional unfixed mistake is a small price to pay rather than allowing people to go
back and forth b/t states
d. Closure is very important
g. Yarborough v. Yarborough (SC 1933), p. 485
i. Divorce case and GA orders dad to pay lump sum for daughter’s support. Order = “final and
unmodifiable.” Daughter moves to SC and sues in SC for more money from father.
ii. SupCt says: SC must give FF&C to GA judgment
1. FF&C means GA child support decision cannot be modified in SC
a. it is final (not modifiable) under GA law, so SC must treat it as such
b. absolved all father’s obligations to his child
2. SC Must give the same preclusive effect to jmt as GA court would have: effect is
determined by F1: Must apply F1’s res judicata laws
iii. Stone’s dissent
1. The FFCC should be not allowed to have GA to undermine the interest SC in a child in its
state. SC may have to take care of the child- plus no statement in judgment that it is final.
2. Legislature of one state probably didn’t pass laws thinking they would have an
extraterritorial effect- so FF&C going further than intended.
3. There should be a public policy exception to the FF&C mandate in certain cases,
including this one b/c gov has a special interest in the support of minor children
4. 2d Rest § 103 has adopted Stone’s approach:
a. cmt (b): FF&C might give way in certain situations
i. non-suit injunctions – state should be able to decide for itself what cases it
will hear
ii. custody decrees – state should be free to do what is in child’s best interests
b. *this is controversial: there appears to be NO AUTHORITY supporting it (*** but
see later Sup Ct cases supporting exceptions for the land taboo and non-suit
injunctions)
iv. Cts may give foreign jments MORE preclusive effect than the rendering state requires (see
Hart v. American Airlines, Inc. p 465): ex – requirements of mutuality differ from state to state for
issue preclusion
v. Note 6: Elkind v. Byck (Cal 1968), p. 493: CA could award additional support for a NY child
w/out worring about a GA decree b/c father moved from GA to CA and there was a uniform act

44
 passed in GA that said the support could be reopened (b/c no state could freeze obligations flowing
from continuing relationship b/t parent and child).
1. *supported by URESA and revised version = UIFSA (p. 494)
vi. Other bases for collateral attack on foreign jments
1. Fraud in obtaining the jment: Christmas v. Russel (1866) – fraud in the jment could not
be raised in an enforcement suit b/c it could not be raised collaterally in the jment state
a. lower cts allow collateral attack based on fraud where the jment state would allow
such an attack
2. Governmental and Penal Claims:
a. commonly thought that there is no need for FF&C for jments based on penal or
government claims
b. Milwaukee v. ME White Co (1935) – FF&C was required for sister state jments
based on tax claims
h. Workman’s Comp Cases: pockets of discretion
i. *States cannot directly determine the extraterritorial effects of their judgments, they can only
prescribe internal res judicata effects, which are then applied externally (even if they tell foreign
courts to give their judgments less effect then they would be given domestically.) SC, not state
courts, determine what FF&C requires.
ii. Thomas v. Washington Gas Light Co. (SC, 1980), p. 496
1. Resident of DC hired by Wash gas in DC, but sustains back injury while working in DC.
Files for VA workman’s comp in ’71- which was allowed. In ’74 files for additional
compensation in DC- under DC law.
2. DC court gives VA judgment the same res judicata effect it would have in VA based on
FF&C- but found that the effect only included disallowing recovery under common law- so
no res judicata effect in DC- and court awards more $. Ct. of Appeals reverses, then SC
reverses again.
3. Analysis:
a. Magnolia: had not been overruled but limited by McCartin—in the 1940's. In
Magnolia a worker was working in TX and injured in TX, but was from LA—the
LA workers comp was more generous than TX, went to TX first—and wanted to
supplement in LA—they said no it made it was FFCC—and can't be reopened.
i. Presumption that workman’s comp awards are res judicata.
ii. Note: TX judgment was an administrative judgment and therefore this is
authority that admin. Judgments are given FF&C
b. McCartin(1947)—both employer and worker enter in contract in IL, both from IL
for work to be performed in Wis. IL decides the case and says its judgment doesn’t
affect rights in other states. P litigates for more $ in WI- SC says a state can
legislate its own extraterritorial effect, but only if it is “unmistakable”
i. Switches the presumption: worker’s comp awards are NOT res judicata
absent “some unmistakable language”
ii. So, WI allowed to give supplemental award to injured worker who had
gotten compensation in IL.
4. 2 precedents: Magnolia and McCartin= in conflict
a. court as a plurality overrules mangnolia
b. F2 awards not barred for workers comp
c. *court says Maccartin not good b/c lets states determine their own extraterritorial
affect
d. Court then relies on Alaska Packers
5. Concurrence: agrees only w/result
6. Dissent: only apply Magnolia- overrule McCartin
7. state of the law now:
a. Magnoila essentially overturned
45
 b. McCartin- concurrence and dissent think interest analysis approach to FF&C is
dumb
c. Clarity- f2 can reopen a f1 judgment in workers comp.
i. Simple rule of magnolia only endorsed by 2 members of the court.
ii. Practitioners rely on McCartain at their peril.
i. The Land Taboo (and jurisdictional attacks on judgments- SMJ)
i. Only the courts of the situs have juris to control the passing of title to land: so judgments by
foreign courts that DIRECTLY control title passing do not have to be given FF&C.
ii. Durfee v. Duke (SC 1963), p. 507: There was a river and it wasn't clear whether the land at the
bottom of the river was in NE or MO—people lay claim to it and NE court decided that the river
was in NE—the loser decided to challenge this in MO—and the case was removed to Fed. Dist.Ct
—question was whether the federal court can change the judgment. Dist. Court said no b/c of res
judicata, Ct. of Ap. Reversed saying NB court didn’t have SMJ.
1. SC reverses again and says MO court must give FF&C to NB court.
2. Reasoning:
a. If SMJ had already been fully litigated and found to exist in F1 (here, NE): F2 can
inquire as to SMJ, but can’t relitigate b/c judgment has preclusive effect.
i. *if hadn’t been fully litigated in F1- then could litigate in F2.
b. So, court saying that SMJ is like other judgments and get same respect under FFC
c. So, binding even though prob. erroneous (get one shot at the issue, then binding)
iii. Clarke v. Clarke (SC, 1900), p. 510: Wife in SC dies and leaves CT land to her hubby and 2
daughters in SC. SC (F1) court converts the land in CT from real to personal prop. B/c land is to
be sold and $ divided b/t the 3. One daughter dies and then husband brings suit CT for instructions
on disposition of her share.
1. CT law gave entire proceeds of deceased sister to surviving sister.
2. SC law divided it b/t sister and husband.
3. CT court applies CT law (F2) and ignores the F1 judgment.
4. SupCt says CT was correct and didn’t have to give FFC to SC decision b/c SC didn’t have
SMJ over matter b/c land located in CT.
5. Basically the land taboo is stronger then res judicata (FN 12- R 451(e))
a. Also, Sovereign immunity, fed. Preemption
b. Local land: so special b/c
i. Nothing else is so connected to the situs as land
ii. Don’t want other laws to affect land in your situs- want to be able to keep
accurate records, etc.
6. effect of land taboo can be a problem:
a. generally there are people living away from the situs
b. EX: ben and jen living in NY and ben owns land in CA- jen pays for the land and
ben won’t give her the deed- she sues in NY for specific performance and NY gives
her a deed- so she goes to CA w/the deed and Ben is on the land- so she sues in CA-
but her deed doesn’t have to be recognized b/c NY doesn’t have SMJ.
i. Instead, if NY court orders ben to sign deed over to jen, and he eventually
does on threat of contempt- and jen goes to CA and sues b/c he is on the
prop- judgment can be enforced. So by NY using PJ over a person to force
them to do something can accomplish indirectly what can’t be
accomplished directly.
iv. Fall v. Eastin (SC, 1909), p. 516: WA court as part of divorce settlement gave title to NE land to
Wife – they appointed a commissioner, who took title to the land and then conveyed to her (so
directly affected title). Husband conveyed it to Mr. X; Wife sued in NE to quiet title.
1. WA cts jment DOES NOT HAVE TO BE RECOGNIZED by NE ct
a. No FF&C needs to be given
b. WA ct directly passed title to land in NE
46
 c. ONLY NE cts have power (jurisdiction) to do that
2. Would have been different if WA ct had issued a decree compelling Husband to convey the
land to Wife, under threat of contempt of court b/c a court can indirectly affect title to
land through personal jurisdiction over the owners
a. Wife COULD have sued in NE to enforce such a decree, and NE ct would have
been bound
3. So basically, a court can do indirectly through PJ over the parties what it cannot do
directly due to lack of SMJ over the land.
4. NOTE: PJ can be waived if not raised or is voluntarily submitted to, and can be
collaterally attacked if no appearance is made by D to litigate the issue. SMJ can’t be
waived.
5. NOTE: finality
a. Appeals, stays, interlocutory order, and retention of juris all may affect
b. Pendency of appeal- depends on law of the state rendering judgment.
j. Non-final Decrees:
i. Worthley v. Worthley (CA, 1955), p. 525: Marrieds from NJ separate and NJ court orders $9
support payment for the wife. Husband moves to CA and stops paying. Wife sues in CA for $.
1. NJ decree can be prospectively and retroactively modifiable
2. CA court holds that foreign created alimony and support obligations are enforceable in CA.
In an action to enforce a modifiable support obligation, either party may tender and litigate
a plea for modification that could have been presented in court where alimony/support
decree originally rendered.
k. Equitable Judgments under FF&C:
i. Traditional Rule: (Lynde, Barber): F2 need not extend FFC to the equiable decrres of F1
ii. Modern Law: Baker v. GM (SC, 1998), p 532: Employee of GM is the usual witness for GM in
prod. L cases. He is fired and sues GM for wrongful discharge in a MI court. GM and E enter into
an agreement in MI that E enjoining him from testifying in other cases (unless he is ordered to do
so – ie subpoenaed). E then begins testifying against DM (requires that those Cos subpoena him so
he doesn’t violate his agreement). Baker then sues GM in MO and subpoena’s E to testify. GM
objects based on the MI injunction.
1. SC says FF&C does not prevent E from testifying. Injunction doesn’t have to be given
credit b/c MI can’t reach into MO court and control the calling of a witness.
2. True Holding: Stranger to the action cannot be bound by the results of F1: Michigan’s
jment cannot reach beyond the Elwell-GM controversy to actions brought in other states by
other parties asserting claims the merits of which Mich has never considered.
3. But no public policy exception to FFC
4. Also, this case shows the distinction b/t substantive and remedial measures.
a. MI judgment is preclusive as to substance, but MI order cannot affect the Bakers
who were not party to the initial action in MI.
5. DISTINCTION BETWEEN ‘RECOGNIZE’ & ‘ENFORCE’
a. F-1 jment in Easton may not be enforced because it’s not directly affecting title, but
it would be recognized in that it would prevent these parties from re-litigating
b. If an F-2 court recognizes an F-1 jment, it may give that jment a preclusive effect
c. Recognition has a defensive quality
d. In Baker, MI order is claim preclusive between Elwell and GM, but MU has no
power over these parties, and it can’t tell MO courts which witnesses to call and
what evidence is relevant. Recognition is only owed to jments MI has authority to
order.
6. Kennedy Concurrence: now have 2 other exceptions to FFC based on majority:
a. FFC doesn’t cover injunctions interfering w/lit over which the ordering state had no
authority

47
 b. Allow courts outside the issuing state to decline to enforce those judgments
purporting to accomplish an official act w/in the exclusive province of a sister state.
c. His approach:
i. Just determine what MI would have done- then use that in MO. MI
wouldn’t have given preclusive affect to Bakers case b/c not parties in
original action.
l. Preclusion in the Federal System: Preclusion in a system where federal law is supreme but states are to
be accommodated
i. Under what circumstances must federal courts give FF&C to state court jments?
1. In the FF&C, there’s no distinction between federal and state courts acting as F2 – it seems
to require a federal court to give FF&C to state court jments (nothing under 18 USC 1738
that says the Fed courts are not to give FF&C)
2. Federal courts are as bound by the F1 jment as any state court
ii. To what extent is Congress empowered to legislate exceptions to the FF&C obligation?
1. Art. IV says that Congress may by general laws prescribe the manner in which such acts,
records, and proceedings shall be proved, and the effect thereof
iii. Allen v. McCurry (SC 1980), p. 549: McCurry is convicted of heroin possession and assault by a
MO state ct; he litigates the question of whether the search leading to his arrest was
unconstitutional at a suppression hearing pre-trial; he then sues under 42 USC 1983 (anti-discrim
statute) claiming the same search was unconstitutional; district ct grants Summ/J for the Ds,
finding that McCurry was precluded from relitigating the search and seizure issue (issue
preclusion). Ct. of appeals reverses, saying that 1983 came after FFC and therefore is an implicit
exception to FFC.
1. SC addresses relationship b/t 1983 and FFC.
a. 1983 designed to aid in the civil rights movement- purpose to prevent
unconstitutional state rulings from becoming final- essentially didn’t trust state
courts to protect constitutional rights- so the fact that 1983 shouldn’t be affected by
FFC is a good argument.
2. BUT: SC reverses saying that 1983 does not create an exception to FFC.
a. Respecting cong. Intent, saying that only circumstances where 1983 intended to be a
remedy =
i. If state law = unconstitutional on its face
ii. If state’s procedural law = inadequate to allow full litigation of the
constitutional claim
iii. If state’s procedural law, no matter how good it might look on the books, is
inadequate in practice.
iv. *none of these circumstances apply here.
b. *prob = McCurry has no federal forum for his fed. Rights
iv. Settlements: Matsushita Electric v. Epstein (SC 1996), p. 559: Matsushita was buying the
common stock of another company called MCA—a group of MCA stockholders challenged this
saying MCA had breached its fiduciary duty by not trying to maximize the return on the SH
investment—and that they involved Matshuita in this.
1. Action brought in DE state court under DE law.
2. Case also brought on transaction in federal court in CA, but on federal CoA that could
only be brought in fed. Court (exclusive fed. Juris).
3. Fed. Case dismissed after sum. J for D, appeal in fed. Case filed.
4. DE suit settled and class is approved and notified that they may opt out- if they don’t then
rights will be affected in state and fed. Cases.
5. 9th cir. Determines state court has no preclusive effect.
6. SC reverses and says that state court does give the class action settlement judgment
preclusive effect to all claims including the claims w/in exclusive juris of fed. Courts.

48
 a. *strange b/c usually don’t have to give preclusive effect to judgments by a court
w/out juris. Over the claims.
b. But this is different b/c this involves settlement and party autonomy: the parties
actually resolved the case, and the state court just accepted and approved it.
c. So, in essence, P’s waived their federal claims
d. This decision reinforces party autonomy and even if a claim is exclusively federal,
it must be given FFC in a federal court if the parties actually made the decision.
i. Determine by asking:
1. would F1 give the decision preclusive effect? And
2. does the federal statute in question explicitly repeal the FFC statute?
v. DOMA: 28 USC 1738(c): “Certain acts, records, and proceedings and the effect thereof: No state
territory, or possession of the US, or Indian Tribe, shall be required to give effect to any public act,
record, or judicial proceeding or any other state . . . respecting a relationship b/t persons of the
same sex that is treated as a marriage under the laws of such state, territory, possession, or tribe, or
a right or claim arising from such a relationship.”
1. "the word marriage means only a legal union btw one man and one woman as husband and
wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or
wife.”
2. 35+ states have enacted legislation saying they won’t recognize same sex marriage.
3. Constitutional Question: Does DOMA fall w/in Cong.’s implementing powers under
Art. IV sec. 1???? “congress may by general laws prescribe the manner in which such
acts, records and proceedings shall be proved, and the effect thereof.”
a. Problem is that this is not a general statute. It’s very specific as to what they’re
talking about.
b. It’s certainly directed at a very particular judicial act
c. But some say that the requirement of generality only means that it can’t refer to
specific cases and must apply to all states
d. *maybe DOMA is actually unnecessary b/c the states have always had the power to
ignore marriages that are considered unacceptable to a state even though accepted
elsewhere: ie polygamy, 1st cousin marriages
i. *until homosexuality is considered a “suspect class” like race, the
constitutional argument will be difficult.
4. Wilson v. Acke (Fl. Dist. Ct, 2005), p. 22 of supp: holds that DOMA did NOT violate the
FFCC—the right to marry is NOT a fundamental right guaranteed by DP—homosexual
NOT suspect class, no strict scrutiny—and it continues to be an accurate statement of the
law.

INTERNATIONAL CONFLICTS

I. EXTRATERRITORIAL JURISDICTION
a. Types of Jurisdiction:
i. Jurisdiction to prescribe / Legislative Jurisdiction - Authority of state to make its substantive
laws applicable to conduct relationships or status
ii. Jurisdiction to Adjudicate – power of a nation to subject persons or things to the process of its
courts or administrative tribunals
iii. Jurisdiction to Enforce – power of a nation to compel compliance or punish noncompliance w/ its
laws, through judicial or nonjudicial action
b. § 402 of 3d Restatement – State has jurisdiction to prescribe w/respect to (these are subject to § 403
reasonableness factors)
i. 1(a) – conduct that wholly or in substantial part, takes place w/in its territory
ii. 1(b) – the status of persons, or interests in things, present w/in its territory
iii. 1(c) – conduct outside its territory that has or is intended to have substantial effect w/in its territory
49
 iv. (2) – the activities, interests, status, or relations of its nationals outside as well as w/in its territory
v. (3) – certain conduct outside its territory by persons not its nationals that is directed against the
security of the state or against a limited class of other state interests
1. *this part could conceivably support passive personality, too
c. § 403 – Limitations on Jurisdiction to Prescribe
i. even when basis exists under § 402, state may not exercise jurisdiction to prescribe over person or
activity having connections w/ another state when the exercise of that jurisdiction is unreasonable
ii. Factors for unreasonableness analysis
1. link to territory of the regulating state – extent to which it took place there or had
foreseeable/direct/substantial effects there
2. connections, s/a nationality residence, or economic activity b/t the regulating state and the
perpetrator or the victim
3. character of the activity, including importance of regulation to the regulating state, extent to
which other state regulates such activities, degree to which desirability of such regulation is
generally accepted
4. justified expectations
5. importance of the regulation to international political, legal or economic system
6. consistency w/ the international system
7. extent of other state’s interest
8. likelihood of conflict w/ regulation of another state
9. *if two states have an interest, one state should defer if the interests of the other are clearly
greater
iii. Foley Brothers Presumption: Foley Brothers v. Filardo: "legislation of Congress, unless a
contrary intent appears, is meant to apply only within the territorial jurisdiction of the US. This
canon of construction is a valid approach whereby unexpressed congressional intent may be
ascertained." So, absent a clear statement, presume congress intended laws NOT to apply
extraterritorially.
d. § 404 – Universal Jurisdiction
i. piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, certain acts of
terrorism
ii. even where no § 402 basis exists
e. Traditional Bases of Jurisdiction to Prescribe
i. Territorial - jurisdiction is based on the place where offense is committed
1. Subjective - conduct committed in the territory (effects could be somewhere else)
2. Objective: Effects Doctrine - effects of the conduct are felt in the territory
a. more controversial
b. can regulate conduct outside the nation if it is intended to have effects w/in the
nation
c. *when are effects enough?
i. US v. Alcoa (2d Cir 1945): intent + effects test: as long as acts intended
to affect US commerce and effects were more than de minimis, then could
assert jurisdiction to prescribe and apply US Antitrust Laws (Sherman act)
1. *problem applying test = neither is easily quantified, and could have
little intent but large effect (or vice versa)= collapse of test into
sliding scale.
3. *most common basis for exercising jurisdiction
ii. National: jurisdiction is based on the nationality of the actor/offender
1. State can always apply its law to its citizens/nationals, wherever they are
2. US relies on this sparingly (usually only to subpoena, etc.)
i. other countries provide for prosecution of their nationals wherever their
crimes are committed

50
 3. VERY DIFFERENT from jurisdiction to enforce over your nationals (ie being able to serve
process/enforce laws) b/c need to enact the help/consent of the other state in order to
enforce.
iii. Protective principle - jurisdiction is based on protecting a national security or strategic
interest
1. Related to INTEGRAL government functions (customs, immigration, currency, etc.)
a. *NOT related to heinousness of crime
rd
2. R 3 of US Foreign Relations Law- I law recognizes that each state may exercise juris over
crimes against its security and integrity, or vital economic interests
3. Examples: Espionage, counterfeiting currency, conspiracy to violate customs or
immigration laws, Falsification of official documents s/a passports, Perjury to
consular officials, Attacks on diplomats
4. *Potential problem - What do you do with the wacko paranoid state who claims that
everything affects their national security interest? (prob. look at the type of crime)
iv. Universal - jurisdiction is conferred in any forum that obtains physical custody of the
perpetrator, for certain offenses considered particularly heinous and dangerous to the
international community (so every state acts as an agent for the I order.
1. Heinousness + Sense of Common Threat
2. Evidenced by treaties and int’l conventions
a. note that some nations have w/held their consent – how is it universal? isn’t “int’l
community” an illusory notion?
3. Examples: slave trade, hijacking aircraft, piracy, genocide, war crimes, probably certain
acts of terrorism
4. § 404 Restatement 3rd Foreign Relations Law: A state has jurisdiction to define and
prescribe punishment for certain offices recognized by the community of nations as of
universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide,
war crimes, and perhaps certain acts of terrorism..." (probably not "perhaps" anymore) You
have a rationale for prosecuting Yunis in international law.
v. Passive personality - jurisdiction is based on the nationality of the victim
1. Example – Pinochet (former Chilean dictator) prosecuted in Spain based on victims who
were Spanish citizens
2. most controversial of the bases: if you bring homeland law w/ you as a victim, Ds can
break the law unintentionally
a. too heavy a burden to figure out where everyone is from before interacting w/ them
b. notice problem / fairness
c. often linked w/ “universality” notion of conduct that is “malum per se”, making the
problematic aspects more minimal
3. US has resisted the use of this type of jurisdiction, although has recently embraced it more
for anti-terrorism (ie when people are targeted b/c of their nationality)
a. Concern that servicemen would be tried around the world
b. Concern that I person visiting US would bring case abroad based on the action of a
US citizen in the US
f. US v. Yunis (DDC, 1988), p. 784: A Royal Jordanian Airliner was hijacked with several American
nationals aboard. The airplane was registered in Jordan, flew the Jordanian flag and never landed on
American soil or flew over American airspace. Yunis was one of the hijackers, and is being prosecuted
under the Hostage Taking Act, 18 USC § 1203. Yunis contends that federal courts do not have the
jurisdiction to prosecute a foreign national for crimes committed in foreign airspace and on foreign soil. In
addition, he claimed that the presence of American nationals on board is an insufficient basis for
exercising jurisdiction under international law.
i. Rule: The Court holds that it has jurisdiction to prosecute Yunis on two alternative grounds:
universality and passive personality.

51
 ii. Universality: The Court recognizes that any state has the power to prosecute crimes against the
international community, regardless of where those crimes occur. The Court determines that air
piracy and hostage taking fit into this category. It cited the fact that a majority of states had signed
agreements punishing aircraft piracy, which mandated that signatory states were required to take
action against offenders in its territory regardless of where the offense occurred. A similar
mandate was found with respect to air piracy.
1. When is there enough evidence to show consensus re this type of act?
a. Conventions signed + what other non-signatories have done
i. Even if not everyone has signed, *look to those w/broad, representative
participation
b. Hague and Montreal conventions of Aerial Terrorism championed universal juris
for hijacking
iii. Passive Personality: The Court also found jurisdiction on this basis. While the court noted its
controversial nature, it stated that nevertheless passive personality was a legitimate means of
asserting jurisdiction. It also noted the US’s clear past distaste for the doctrine, citing the desire to
not subject US citizens to suits in foreign countries for wrongs in the US. However, the Court
stated that the US has been reducing its reluctance to apply such a principle, and that applying it
here where there has been a clear violation of international law will not raise the specter of
unlimited and unexpected criminal liability for US citizens.
iv. *protective principal doesn’t work here b/c: case didn’t deal w/national security interests
g. EEOC v. Arabian American Oil (Aramco) (US, 1991), p. 796
i. P naturalized US cit, worked for Aramco, a US co in TX and then asked to be transferred to Saudi
Arabia, and then was let go. P sued Aramco under Title VII of the Civil Rights Act (employment
discrimination). Dist. Court dismissed the Title VII and state law claims and entered final
judgment for Ds. Ct. of Appeals affirmed. EECO took the case to the SC, which affirmed.
ii. SC applied the Foley Brother’s Presumption- that Title VII should not apply extraterritorially
unless “clear intent”- burden on P.
iii. EEOC argued that the terms “employer” and “commerce” were broad enough to include US firms
employing American citizens overseas.
1. BUT there is no mention of “commerce w/ foreign nations.”
2. Lanham Act said “all commerce which may lawfully be regulated by Congress” – this
WAS clear enough, but Title VII does not reach this level
iv. EEOC argued that “Alien Exemption” clause negatively implies that Cong intended to protect US
citizens from employment discrimination abroad – “does not apply to an employer w/ respect to
employment of aliens outside any state.” Argue that negative inference is that should apply to US
citizens outside any state
1. Creates too broad a reach for the statute – e.g. would apply to French employer of US
citizen in France. No way to distinguish between foreign and citizen employer under that
reading.
v. SC found no clear intent for Title VII to apply extraterritorially.
vi. Note: After this decision, Cong amended Title VII with explicit language to apply to US Citizens
working abroad – Lower courts take this as a sign that the Foley presumption is alive and well- and
they apply it rigourously.
h. Charming Betsy Principle: 6 U.S. 64 (1984): "An act of Congress ought never to be construed to violate
the law of nations if any other possible construction remains."
i. Legislation should be construed w/conformity to international law
ii. But, the law of nations, like all common law, bends to the will of Congress
iii. When a statute is silent about international standards, established international norms may guide its
interpretation.
iv. What does Charming Betsy mean re substantive law?
1. it has jurisdictional underpinnings- but could possibly be used to interpret substantive US
standards (ie labor, environmental law)
52
 v. Foreign govts have violently opposed use of US law abroad—not well discussed by text. The
hostility isn't just diplomatic—but foreign states have also enacted statutes (BLOCKING statutes)
that are specifically meant to penalize use of US law- ie use of US antitrust law. Ie, such statutes
might say that if you are forced to pay treble damages in the US, you can use our courts to get 2/3s
of the damages back—that is VERY aggressive.
i. Hartford Fire Insurance v. Cali. (US, 1993), p. 810: Commercial general liability insurance: conspiracy
by insurers and reinsurers in violation of antitrust law—to constrict the terms of insurance companies.
i. SC held that Foreign insurance companies located in UK are subject to US anti trust laws—
international comity does not include jurisdiction over the foreign conduct that is alleged here.
Comity does not reuire the US courts to decline jurisdiction.
ii. Reasoning: No true conflict b/c COULD be in compliance with both British and US law. US law
prohibited something and UK law allows it- court says this is not a true conflict.
iii. True conflict exists only when one country prohibits something that another requires: ie
when impossible to comply w/both laws.

US Law UK Law Conflict? Comity

Prohibits Allows No No
Prohibits Requires Yes Maybe

iv. Problems :
1. Scalia (dissent) Has majority defined conflict so narrowly that concept of comity really has
no chance of having affect in the real world. Believes that comity should be triggered
whenever there is a conflict of laws, not just in the most extreme cases.
a. Irony in case, seems to give most deference to laws that are most different from
ours and overrule those that are most like ours. Believes that we should give the
most deference to laws that are most like our own: any inconsistency should
trigger comity, not just rare cases of direct opposition.
b. Foley Bros presumption not in play: has been overcome by Sherman Act
(although no clear intent????)
c. Under Reasonableness analysis of § 403 (jurisdiction to prescribe, see above) UK
law should be applied. Most of the conduct takes place in the UK, they have a well
regulated law and at US state level may override the Sherman Act(???). So holding
of majority to apply reasonableness doctrine is confusing.
i. *Scalia is the only one who applies the rx test under 403- which comes
out squarely against application of US law. Ie US regulatory interest not
that strong b/c state laws can override the Sherman Act.
2. No clear holding in the case- State of the law also unclear. When cts are faced with choice
of law questions they apply anyone of these criteria: pick and chose among tests. On test
and in real life argue for and against under each test.
a. Hartford Ins. Comity test
i. IS THERE A DIRECT CONFLICT B/T THE LAWS?
1. if no true conflict b/t the laws, comity not required
2. if there IS a true conflict b/e the laws, may need comity
3. *TRUE CONFLICT = cannot simultaneously comply w/ both laws
(one forbids what the other mandates)
b. 3rd R of USFRL § 403 reasonableness test
c. Adopt US state approaches to interstate conflicts:
i. 1st R territoriality
ii. 2nd R MSR test
iii. IA
53
 d. Apply Foley Bros presumption against extraterritorial application of US law (look
for clear statement of congressional intent, and if doesn’t exist, apply foreign law)
e. Diplomatic resolutions (ad hoc, sometimes bilateral solutions)
j. Extraterritorial Application of Constitutional Limits on Government Action: 4th, 5th, and 6th
Amendments:
i. Reid v. Covert (discussed in Verdugo): Executive agreement allowed service people’s dependents
to be tried by court martial for crimes committed on foreign bases. Ds killed their husbands and
subjected to court martial. Ds challenged on the ground that it deprives them of their constitutional
right to a jury trial.
1. Q at issue: can the president, by signing a treaty (or exec agreement) w/the consent of
congress, achieve what would be unconstitutional by statute (ie sign away constitutional
rights)?
a. NO: the constitution, in its entirety, applies to dependents of servicemen abroad.
Pres could not provide for courts martial here b/c it would permit a run around the
constitution- not allowed.
2. But this is only a plurality opinion: common ground b/t plurality and concurrence = no
treaty can trump the individual rights of citizen.
3. Sometimes, however, Reid is cited for the proposition that the govt. can only act (anywhere
in the world) in accordance w/constitutional limits. This is not really good law today (ie
look at Guantanamo).
ii. US v. Verdugo-Urquidez (SC, 1990), p. 835: first significant hint that the constitution might not
limit govt. actions abroad.
1. D was a citizen and resident of Mex; DEA believed was leader of large drug smuggling
operation into US; Searched his home without a warrant, but with cooperation of Mexican
authorities; seized docs. This would have been illegal if happened in the US. He says the
4th Am makes the search and seizure illegal.
2. Both the dist. Ct. and the ct. of ap. Suppressed the evidence acquired through the search,
citing Reid and INS v. Lopez-Mendoza- which had assumed that aliens living abroad had
4th A rights.
a. Lower courts also thought it would be weird to give Verdugo full due process
rights, but not 4th A rights.
3. SC reverses: says that 4th A rights do not apply to search and seizure by US agents abroad
re a non-US Citizen.
a. Distinguish from 5th and 6th Amends
i. 5th and 6th are trial, not pre-trial rights
ii. If there was a Constitutional violation, occurred in Mex
iii. the remedial question of exclusion is separate from the issue of existence
of the constitutional right
b. Textual basis for result: “The People”
i. 4th Am applies to “The People”
ii. 5th and 6th refer to “person” or “accused”
iii. “The People” reference in the 4th A is a term of art referring to the people of
the US – those who are part of the national community or who have
sufficient connections to be considered part of that community. 4th A says
“the right of the people” to be free from unrx searches- the court says “the
people” are a class of people who are part of a national community or who
have otherwise developed a sufficient connection w/this country to be
considered part of that community. (includes US Cit. and possibly aliens
w/in the US- see Lopez –Mendoza).
c. What qualifies as a significant connection?
i. Not enough that you’re being prosecuted in the US by US agents
ii. Residence seems to be enough
54
 4. Court differentiates Reid b/c D in this case is not a US cit.- confines Reid to a narrow
holding- limited to US Citizens.
5. Kennedy concurrence: 4th A shouldn’t be interpreted as not applying to aliens, but
shouldn’t apply outside US, b/c not intended to.
6. Brennan’s dissent: The govt. established contact w/the D when they decided to “yoink”
him from Mexico and prosecute him in the US, so in that way, D became one of the
“governed” and gained sufficient contacts to reap the benefits of US 4th A rights.
a. *if US crim laws can be enforced abroad, then they should also be subject to
constitutional limits (broad holding from Reid).
iii. 2005 term of the SC:
1. Rasul v. Bush: US courts have juris to consider challenges to the legality of the detention
of foreign nationals captured abroad in connection w/hostilities and incarcerated at
Guantanamo.
a. Suggests that there will be US law to apply, and not merely statutory law.
2. Hamdi: The indefinite detention of US citizens for the purposes of interrogation is not
authorized. Due process demands that a citizen held in the US as an enemy combatant be
given a meaningful opportunity to contest the factual basis for that detention before a
neutral decision-maker
II. THE ACT OF STATE DOCTRINE: Courts in the US will refrain from judging the validity of a foreign
govt.’s official acts w/in the foreign govt.’s own territory.
a. Background:
i. The international equivalent of the political question doctrine. If the doctrine applies, courts will
decline to adjudicate the case.
ii. Judge-created notion, creature of federal common law to which judges themselves are hostile
(judges are in the business of resolving cases, so don’t like it when things stand in the way of their
doing so).
iii. AsoD can also be used by private parties if there if they were compelled by a foreign sovereign
to violate US law.
iv. Different than head of state immunity- for sitting foreign heads of state.
v. Exercises of “sovereign authority”
1. acts by senior officials or under their authority
a. those w/ apparent authority to act for the state (in some Circuits)
2. conduct plainly mandated by or authorized by foreign law
3. triggered only by exercise of Executive Authority of foreign governments (not merely their
statutes – this would mean we would always bow to the laws of others)
4. *acts must be done w/in the territory of the other government
vi. Classic formulation- from Underhill v. Hernandez: “every sovereign state is bound to respect the
independence of every other sovereign state, and the courts of one country will not sit in judgment
on the acts of the govt. of another done w/in its own territory.
b. Limits on the Act of State Doctrine: from Sabbatino:
i. Territoriality: Per se factor: AOSD only applies to acts by a sovereign state in its own territory
1. easy to determine re real estate, more difficult re other types of property such as debts,
obligations, intellectual property, etc.
2. location of the asset is fairly well litigated.
ii. Diplomacy: Applies to acts of Extant and Recognized Governments (at the time of suit) ONLY
1. If the govt no longer exists at time of suit, or isn’t recognized by the US, then no chance for
embarrassment, and no reason to apply AoSD.
2. Ex – prosecution of Nazi Gov acts is now permissible b/c the German Nazi government fell
out of power in 1945 (would not have been permitted when still in power.
iii. Clear law: the more codification and consensus (treaties, other unambiguous agreements) on an
issue, the more appropriate it is for the judiciary to decide it.

55
 1. if there is clear law, then there is no need to defer to the judgment of the foreign govt., but
in the absence of, you have to presume the validity of the foreign state’s acts.
a. If law is clear, the court should render a decision- less chance of embarrassment.
b. Zoolander standard: if its really, really, really illegal, then its justiciable. If its only
arguably illegal, then refrain.
iv. Congressional override: AoSD is federal common law, so bends to the will of congress.
1. ex - 2nd Hickenlooper Amendment directed cts not to apply the AoSD to takings that
violated International law (overturning Sabbatino).
a. takings that violate International law can be adjudicated in US Cts
b. provided asserted claim was for a property right
c. AND Pres had not specifically filed a notice barring suit
2. See also, Helms-Burton Act, Federal Arbitration Act: all represent congressional overrides
of AoSD.
v. Executive Suggestion: “Bernstein Letters”/briefs submitted to the courts saying whether or not
the executive has a problem w/the courts going forward w/the case.
1. These submissions are persuasive but not dispositive
a. that would probably be an Sep. o Powers violation (some cts say otherwise – Circuit
split)
2. *also the less sensitive the issue re foreign relations, less reason for judiciary to abstain
vi. Public Act:
1. Must be some exercise of sovereign authority
2. Must be an official policy or conduct must be ratified by the state- ie put arm around the
actor.
3. *If the act is illegal under the laws of the sovereign, AoSD does not apply: ex – murder,
torture, rape, etc.

c. Banco Nacional de Cuba v. Sabbatino (US, 1964), p. 864: High point of Act of state doc. In the US +
Limits on Act of State Doc.
i. There was an estate owned by US nationals in Cuba selling sugar to a broker in NY. The Cuban
government expropriated the estate and assigned the interests to Banco-Nacional de Cuba. The
issue was who gets paid for the sugar, Sabbatino, the receiver under NY law, or bank because of
expropriation.
1. Sabbatino claimed that title never passed to Cuban government because the expropriation
was in violation of international law.
2. Cuba said court can’t judge validity of the act b/c of AoSD.
3. Sabbitino won in lower courts, but SC ruled for Cuba under AoSD.
ii. RULE
1. Judicial Branch will not examine the validity of a taking of property
2. by an extant and recognized (at the time of the suit) foreign government
3. within its own territory
4. in the absence of a treaty or other unambiguous agreement regarding controlling legal
principles
5. even if the complaint alleges that the taking violates customary international law
iii. *Summarized – refuse to adjudicate takings by foreign govs in the absense of a specific
agreement
iv. Why do we have the Act of State Doctrine?
1. Separation of Powers issues: the AoSD had constitutional underpinnings.
a. It prevents courts from stepping on the executive’s toes in the area of foreign
relations.
i. Abstention unnecessary only when chance of embarrassing the exec. is non-
existent.
b. AoSD is not compelled by the inherent nature of sovereign authority or by I law
56
 v. High watermark of AOSD – held that any case which involved an action by a recognized
foreign gov’t within its own territory would be barred from adjudication in US courts
UNLESS there was a treaty provision on point
vi. Limits on AoSD: see above.
d. How is AoSD a choice of law notion?
i. It “concerns the limits for determining the validity of an otherwise applicable rule of law.”
ii. In a case in which the AoSD applies, the US may not apply its own law to the case, even in a
situation where US law would otherwise apply.
iii. Distinguished from Immunity
1. immunity refers to prerogative right not to have sovereign property or sovereign individuals
subject to suit.
2. “The AoSD, however, although it shares w/ the immunity doctrine a respect for
sovereign states, concerns the limits for determining the validity of an otherwise
applicable rule of law”
3. Q is – we have jurisdiction to prescribe – SHOULD WE USE IT?
iv. AoSD perpetuates the territorial thinking of the 1st Rest, with its focus on where acts occurred to
determine applicable law
v. AoSD trumps the public policy exception
1. in Sabbatino, our public policy was offended, but we declined to apply our (the forum’s)
law anyway
vi. How Does the AoSD connect to other theories of Int’l CoL, like the Restatement?
1. First, use § 403
2. THEN look to the AoS Doctrine
a. AOSD is the thumb on the scale tipping it in favor of choosing the foreign
government’s law when certain foreign policy concerns are in play
e. W.S. Kirkpatrick v. Environmental Tectonics (SC, 1990), p. 871: The “death knell” of AoS in the US:
i. Kirkpatrick pled guilty under the Foreign Corrupt Practices Act to bribing the Nigerian gov to get a
K from the Nigerian government. Civil claim brought by US competitor who lost the bid.
Kirkpatrick defends on AoSD grounds, saying that adjudication of the case by US Cts would
embarrass the Nigerian government. Private Parties CAN invoke the AoSD.
1. SC decides that AoSD will not be applied here b/c Ct is not being asked to judge the acts
of a foreign sovereign, only the acts of Kirkpatrick.
a. No official act that could be declared invalid by US- question is not whether the
bribes were valid- but whether the govt. took them
2. The court formalistically separates the act of giving the bribe from the act of the Nigerian
Gov taking the bribe
3. Argument that it was rightly decided
a. Not a public act (bribery is illegal) so AoSD does not apply anyway (Nigerian law
forbids bribery in gov K bidding)
b. Executive had submitted Bernstein letter saying the suit was OK, no need to apply
AoSD: inquiry into the purpose behind the act will not mess with foreign relations
in the way that inquiring into the act itself would.
4. Critiques- this decision was wrong
a. Characterization of the issue =too formalistic
b. To determine the legality of Kirkpatrick’s actions, you’ll obviously be judging the
actions of the Nigerian govt.
5. Steinhardt’s interp - this case is the death knell for AOSD
a. If AoSD doesn’t apply here, where would it ever apply?
b. Shows that ct is hostile to the idea that it cannot decide these cases
c. Shows how far courts will go not to apply the doctrine
d. *may continue to be useful when foreign relations are really involved – gives the cts
a graceful way out if they want/need it
57
 e. SC has not applied AOS doctrine since Cuban cases, and look how far SC went to
not apply the doctrine.
f. So AOS doctrine is out there and useful in some situations, but not going to be
applied in most cases. Probably most useful in cases in which foreign relations are
really involved
g. *Note: Ct will not rely on embarrassment alone, while this may be the
underlying rationale, need structured legal cause not to hear the case
f. Langauge in both Sabbatino and Kirpatrick—that supports treating AoSD as a choice of law doctrine: but
how do we connect it to other matters in International choice of law?
i. International Jurisdiction to Prescribe: Hartford Insurance: US FRL §403: Offers a multifactor
analysis to when US law should be applied when there is a conflict with a foreign state. Goes to
figuring out whether the exercise of jurisdiction is reasonable—goes to link of transaction at issue
and the sovereign in conflict.
ii. Seems like US FRL considered jurisdiction issues under 403 and AoSD to be separate b/c § 443
deals with AOSD: Law of the united states: 1) in the absence of a treaty or other unambiguous
agreement regarding controlling elal principles, cours in the US will generally refrain from
eexamining the validity of a taking by a foreing state of property w/in its own territory, or from
sitting in judgment on other acts ofa governmental character done by a foreign state within its own
territory and applicable there. 2) the doctrine set forth in subsection (1) is subject tot medication by
act of congress. See §444
1. §444: really Hickenlooper Amendment: AOSD: Statutory limitation: in the absence of a
presidential determination to the contrary, the act of state doctrine will not be applied in a
case involving a claim of title or other right to property, when the claim is based on the
assertion that a foreign state confiscated the property in violation of international law.
iii. Why is AOSD is separated area from conflicts?
1. FSIA: 1976, states agency, instrumentalities—it is jurisdictional
2. AOSD: not controlled by statute—so it is Federal common law. Not really jurisdictional
issue, more of an issue of justiciability and choice of law. It is a sovereign compulsion—
Japanese private manufacturers.
III. RECOGNITION OF FOREIGN JUDGMENTS
a. *huge contrast b/t interstate res judicata and international res judicata
i. interstate is very powerful
ii. international comity is not that powerful
b. The Hilton Dicta- Factors for Foreign Judgment Enforceability
i. Hilton v. Guyot (SC, 1895), p. 881: NY cit. trading in Paris w/French firm and owed them a lot of
$. Firm brings suit against them in French court- and wins. Firm goes bust and liquidator comes to
NY to enforce the French judgment in NY courts.
1. SC says that the judgment will not be enforced.
2. SC says would normally respect the judgment through international comity (which is
“neither a matter of absolute obligation, on the one hand, nor or mere courtesy and
good will, upon the other. . . but the recognition which one nation allows w/in its
territory due to the legislative, exec, or judicial acts of another nation.”
3. But no comity here b/c no reciprocity w/US judgments in French Courts.
4. Why have a reciprocity rule?
a. Raises the stakes and encourages foreign courts to give res judicata effect to US
judgments.
i. Counter: but does it really make sense to have a French citizen pay for a
French policy????
5. Dissent: reciprocity isn’t good- doesn’t make sense to re-litigate
6. *from notes: this reciprocity rule has died and isn’t used anymore unless issue w/actual
trial proceedings- policy of finality more important than reciprocity.

58
 7. DICTA from HILTON: has actually had more power than the holding: today Hilton
stands for the presumption of enforceability of foreign judgments:
a. A foreign judgment is presumptively enforceable, so long as there was (factors
are discretionary and can be weighed differently):
i. Full and fair trial
1. Fr. court allowed testimony not under oath, and no cross-ex. This
wasn’t fatal, even though not consistent w/ US D/P, b/c this is the
way they do it/their standards- can’t ask them to do it our way.
2. Differences in privileges not enough, as long as they applied Fr. law
properly
3. Want basic fairness (not American standards)
4. Int’l conception of D/P – less demanding/complex than US D/P, e.g.
fair and public hearing in front of a tribunal
a. International Covenant on Civil and Political Rights, Artilce
14: All persons are equal before the courts. In the
determination of a criminal charge or of civil obligations,
everyone is entitled to a fair and public hearing by a
competent, independent, and impartial tribunal established by
law. Any judgment rendered in a criminal case or in a suit at
law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern
matrimoniual dipsutres of the guardianship of children."
ii. Competent jurisdiction
iii. Regular proceedings
iv. Adequate notice to D
v. Impartial justice between aliens and citizens
vi. No prejudice in the court
vii. No prejudice in the laws
viii. No fraud in procuring the jmt
ix. No other special reason for denying comity
8. *Hilton is pre-Erie
a. Fed courts sitting in diversity must apply state law when substantive
b. State rule for enforcement of judgments is substantive and would overrule Hilton
dicta
c. Seems strange that state law would be applied b/c dealing w/foreign judgments and
sensitivities – ie foreign relations- seems like a federal matter
9. many sources to consider when looking at problem of enforcing foreign judgments:
a. Hilton dicta
b. Treaties
c. State difference due to Erie
c. Uniform Foreign Money-Judgments Recognition Act (UFMRA) (note 7 p. 889, supp. p. 25)
i. Observations:
1. primary way to bring uniformity to recognition of foreign judgments
2. Adopted by over half the states
3. Replicates the common law in this area
4. No reciprocity agreement: BUT there are exceptions
ii. General Provisions of the Act:
1. Definitions: A foreign judgment means any judgment of a foreign state granting or denying
recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a
judgment for support in matrimonial or family matters.
a. *just money is involved- not equitable judgments
b. *both P and D can take advantage of this act
59
2. Applicability: This act applies to any foreign judgment that is final and conclusive and
enforceable where rendered *even though an appeal therefrom is pending or it is subject to
appeal.
3. Sec. III: Recognition and Enforcement: Except as provided in section 4, a foreign
judgment meeting the requirements of section 2 is conclusive between the parties to the
extent that it grants or denies recovery of a sum of money. The foreign judgment is
enforceable in the same manner as the judgment of a sister state which is entitled to
FF&C.
4. Presumes that Foreign Money Jments are Enforceable if None of the Mandatory
Grounds were Violated
5. 3 Mandatory grounds for non-recognition § 4(a): burden is on foreigner wanting to
enforce jmt to prove that none of the mandatory grounds were violated
a. (a) A foreign judgment is not conclusive if:
i. (1) the jmt was rendered under a system which does not provide impartial
tribunals or procedures compatible with the requirements of D/P of law
1. basically, it’s not a fair system
2. high standard, but can be satisfied
3. Ex – Iran, civil war gov in Libya
ii. (2) the foreign court did not have P/J over D
1. can be relitigated – foreign ct’s conclusion not binding
2. but see §5 – specifies certain connections that must be considered
adequate for PJ
a. Personal service over D
b. D has voluntarily appeared
c. D consents/Submits
d. D’s domicile
e. D does business there and the issue arises from that business
f. D operated a motor vehicle in the forum state
iii. (3) the foreign court did not have SM/J
1. can be relitigated – foreign ct’s conclusion not binding
6. Discretionary grounds for non-recognition or enforcement: § 4(b) – burden is on D to
show that one was violated and thus jment should not be enforced
a. Foreign jmt need not be recognized if:
i. (1) inadequate notice: D in the proceedings in the foreign court did not
receive notice of the proceedings in sufficient time to enable him to defend
ii. (2) jmt was obtained by fraud
iii. (3) public policy: enforcement of the jment would be repugnant to the
public policy of this state (b/c the cause of action or claim for relief is
repugnant for some reason)
1. *PP may be so elastic that it swallows the rule, brings Hilton’s
presumption of validity into question
2. are there limits to a PP defense?
a. Court wouldn’t enforce a foreign judgment that went against
the constitution- ie different libel standards.
iv. (4) the jmt conflicts with another final and conclusive judgment
v. (5) jment obtained contrary to dispute settlement agreement b/t the
parties: forum selection clause was violated: the proceeding in the
foreign court was contrary to an agreement between the parties under which
the dispute in question was to be settled otherwise than by proceedings in
that court
vi. (6) P/J based only on personal service and forum was very inconvenient
for D
60
 b. * NOTE – differences from Hilton dicta
i. 3-6 have no parallels in the Hilton dicta
1. public policy
2. conflicts b/t jments
3. contrary to dispute settlement agreement
4. forum nonconveniens
ii. no distinction b/t mandatory and discretionary
iii. more options in the act than in Hilton
iii. Burden of Proof to determine enforceability of foreign judgment:
1. Start w/the presumption of enforceability
2. Mandatory grounds:
a. P is the one seeking enforcement- so burden on P to show valid
b. So, these are like preconditions to enforcement
3. Discretionary grounds:
a. These are like exceptions to enforceability
b. D has burden to show these exist (and judgment shouldn’t be recognized)
iv. Law governing recognition and enforcement of judgments: recap:
1. Hilton dicta is more important than its holding re reciprocity
2. Under Erie- fed. Courts are to apply recognition doctrines of the states in which they sit –
which seems odd given the international character of the case/issue
3. Some coherence in the state law due to the adoption of the Uniform Foreign Money
Judgments recognition Act
a. UFMJRA- not identical to Hilton dicta, but spells the law out even better.

CONTEMPORARY ISSUES IN THE CHOICE OF LAW

I. Conflicts in Cyberspace: Trying to answer the question of how can you be in two places at once when your
not anywhere at all
a. Lawrence Lessig, Code and Other Laws of Cyberspace, p. 296:
i. 2 oversimplifying and opposite answers:
1. everything has changed and we need totally new law
2. we’ve been here before it’s a matter of adapting old approaches to new problems
b. party autonomy more prevalent in cyberspace
i. many issues can be handled through point and click contracts
ii. but what if not in a contractual world?
1. Download a copy of sin city- still illegal even if you get away w/it
b. Licra v. Yahoo, p. 301 + Yahoo v. La Ligue, p. 304: French Jewish student union sued Yahoo for
violation of the French penal code (that disallows auction of items that glorify or are directly associated
w/groups known primarily for hateful/violent positions/acts- such as the Nazis).
i. French judgment against yahoo for violation of French penal code- P. 301- order to yahoo, forcing
it to limit French cit. access to nazi cites and imposed a penalty for every day yahoo failed to
comply. Yahoo says can’t comply w/out banning nazi related material, which is a violation of 1 st A
rights.
ii. Problems
1. in france- illustrates choice of law and juris to prescribe- how does france have juris to
prescribe re yahoo beyond france
2. US- recognition and enforcement of foreign judgments
a. Presumption of enforceability- + can be overcome in limited circumstances
b. Public policy counterweight to usual comity
3. Issue of who gets to regulate internet and through what form
4. Anthropology ?= will courts of US respect foreign judgments that rest on views about free
speech that US doesn’t share
61
 iii. Then, May 22, issued an interim order – telling yahoo to take all necessary measures to dissuade
and render impossible any consult for nazi objects or make apologies for nazi acts.
1. alternative translation of French order- from the district court opinion
a. “take all necessary measures” to dissuade any action from French territory to
yahoo.com
2. phrasing about how extensive measure must be = different
a. “all reasonable measures” v. “all necessary measures”
b. might also alter the hardship argument by yahoo- which would affect 1st A argment
c. *so- it matters how we chose to interpret the details of this French orders
3. requires:
a. interim precautionary measures:
i. cease all hosting and availability in the territory of France from Yaho- of
messages, images, etc. relating to Nazi objects, etc.
ii. remove from all browser directors
iv. Is this a money judgment?
1. injunction- so not money
v. Is this a final judgment?
1. this is like a temporary injunction-
2. so doesn’t look final
vi. so less well defined notions of comity here- and whether should extend comity
1. so D’s saying – don’t worry about this until final
vii. district court decided that it was sufficiently final to be subject to Hilton presumption of
enforceability: cites a decision that a UK judgment re libel that would offend the US constitution
is unenforceable
viii. essence of yahoo’s public policy argument: US court can’t enforce this w/out offending the 1st
amendment, can’t become an agent of a foreign order that violates free speech
ix. Mere differences in law is not enough to apply public policy
1. but these differences are enough for dist. Court
a. public policy of a constitutional issue is enough to trigger (not necessarily to win)
b. *+ doesn’t have to be constitutional
2. public policy concern wins if would undermine public interest, public confidence in the
law= different standard than in choice of law
a. courts think they have more freedom to dis a private choice of law on public policy
grounds- then a foreign court decision (b/c want reciprocity)
x. if less restrictive way to do this- then this would be important
1. but probably not less restrictive way – b/c can’t determine citizenship of internet users (so
can’t just restrict frenchies)
xi. Reversed by 9th circuit en banc
1. summary in book = short and misleading
2. 2 rx the circuit identifies for reversing
a. this is an “interim” order- argument that this issue isn’t “ripe” yet- b/c French court
could change the order
b. we don’t know whether French court would hold that Yahoo is now violating its 2
c. interim orders
3. court not looking so much at non-territorial nature of cyberspace, but focusing on the
territorial nature of the order- and limiting it to france
xii. yahoo’s constituional claim: 1st amendment right to offer products to people in france
1. but under French crim law- forbidden to provide these materials to French users
2. 9th cir saying- yahoo is saying that yahoo is saying it has a 1st A right to violate French crim
law
a. court not willing to embrace this
b. but, at the end of the day- yahoo loses
62
 xiii. Court finds that 1st Am is sufficiently important public policy to decline to enforce a foreign
jment
1. US Ct refuses to enforce the jment on Public Policy Grounds
a. 1st Am rights trump the policy of finality, need to respect jments of other cts
b. Ct refuses to be an agent of foreign society’s conception of free speech in violation
of the 1st Am
2. AoSD n/a here on territoriality grounds
a. Ct says Yahoo’s actions took place here, not in France
b. arguable that this notion of territoriality is even applicable to such a case
c. did Yahoo act where it is incorporated?
d. where it’s servers are?
e. where the harm occurred?
xiv. *essential question of which law controls in cyberspace has been postponed
c. other cases
i. AOL v. NHCD
1. courts looking for a standard territorial link in order to decide case
2. used 2nd R analysis
ii. People v. World interactive gaming
1. placing a bet online in NY = gambling in state of NY
d. what does all of this suggest?
i. What should the proper choice of law for cyberspace be?
1. Assuming the risk- people who chose to use cyberspace assume the highest risk- and it’s
their job to find out what the rules/risks are
a. They are arguably the best cost avoiders and burden should fall on them to figure
out what laws apply
2. Treat it as a “51st” state
a. But strange if we’re getting into a non-territorial space- and then revert back to
territoriality
e. Internet might generate a lot of “true conflicts”
II. International human rights litigation:
a. Tachiona v. Mugabe (NY, 2002), supp
i. Arises under ATS –1789= 28 USC 1350: Allows aliens to sue in fed. Dist. Court for tort only,
committed in violation of the law of nations (I law) or a treaty of the US
ii. 3 requirments:
1. alien P
2. tort
3. violation of I law
4. *all satisfied in the Mugabe case
iii. Victims of human rights abuse in Zimbabwe bringing cases against ruling political party and
mugabe- for campaign of violence designed to silence political opposition that included racial
discrim, unlawful seizure of prop, torture, extrajudicial killing, etc. Mugabe got immunity as a
foreign head of state (*even sitting pres of US doesn’t get this type of immunity).
iv. Court follows 2nd R- most sig. Relationship test to figure out whose law should govern:
1. court looks to law re the party and events
2. 2nd R says: (1) the rights and liabilities of the parties w/respect to an issue in tort are
determined by the local law of the state which, w/respect to that issue, has the most
significant R to the occurrence and the parties under the principles state in sec. 6
a. *court’s interpretation of the 2nd R is kind of fast and lose to say that 2nd R looks to
the “party and events”
3. Court finds that Zimbabwean local law does not apply- WHY? Given that everything
occurred there?
a. ct acknowledges forum shopping concern, but it takes a back seat
63
 b. federal policy of ATCA is to enforce int’l human rights law and provide a
remedy for human rights abuses
i. Zimbabwean law doesn’t create cause of action for some of the wrongs
ii. The US wanted to demonstrate that it took its I law seriously- if you are a
foreigner, you will have access to justice in our courts
iii. Court concerned that to allow the wholesale application of Z law would
undermine the idea that we can’t be a safe haven and this badge of honor the
framers
iv. Federal commitments/interests would be undermined if Z law applied
4. Why isn’t this suit barred by the AoSD? not a publicly ratified act – such extrajudicial
killing and torture is illegal under Zimbabwe law too
v. *Mugabe shows how revolutionary CoL has been: Not thinking territorially, thinking about
purposes, and values in ATS: why is Zimb. Law trumped, b/c would undermine policy implicit in
ATS
vi. so move from territoriality to policy-based analysis
vii. Important cases mentioned: Filartiga (1980): SMJ under the ATS proper b/c 1) p’s were “aliens,”
2) torture consitututes “tort” of assault and battery inter alia, and iii) torture under state auspices is
a violation of the law of nations
viii. What else besides torture qualifies? A state violates I law, if as a matter of state policy, practices,
encourages, or condones:
1. genocide
2. slavery or slave trade
3. murder or causing disappearance of individuals
4. torture and other cruel, inhuman, or degrading treatement or prunishment
5. prolonged arbitrary detention
6. systematic racial discrimination
7. a consistent pattern of gross violations of internationally recognized human rights
8. *transitory tort notion = the place where tort committed has ability to punish wherever
tortfeaser goes
ix. post-restatement developments in enforceable HR norms under ATS
1. rape and gender violence in an international setting
2. certain acts of terrorism (ie hostage-taking)
3. war crimes
4. crimes against humanity
a. derivative from Nuremberg
5. violations of internationally defined religious freedoms
x. but, courts deny ATS juris if tort doesn’t actually violate law of nations
1. ie claims for loss of money from a state lottery distribution system = Zapata v. quinn
2. intra- border environmental torts = flores v. S peru copper
3. full 1st A freedoms- guinto v. marcos
a. American 1st A freedoms don’t apply abroad
4. business fraud- Hamid v. price waterhouse
5. defamation= maugein v. newmont
b. Kadic v. Karadzic
i. certain forms of conduct violate the laws of nations whether undertaken by those acting either
under the auspices of the state or only as private individuals.
ii. Under what conditions can private actors have international ramifications?: 2 circumstances:
1. per se wrongs: the private actor commits a wrong identified by a treaty and or custom as
not requiring state action to be wrongful
a. piracy, slave trade, terrorism
2. contextual wrongs; the offensive conduct is sufficiently related to state action as to
engage international standards.
64
 a. But what is the standard for aiding and abetting- how much of a relationship is
enough?
c. Questions:
i. If the statute only applies to official acts, and SI applies to govts, how does an ATS claim ever
succeed?
1. if filarctica tried to sue Paraguay- would have failed
2. but they didn’t- so went after the chief of police
3. impossible for Paraguay to claim this act as it’s own b/c it was illegal
4. no sovereign immunity (b/c misused position) or act of state treatement (b/c clear violation
of I law, and not ratified public act)
ii. Is it only used against ousted govts who no longer are afforded sovereign immunity?
1. ATS does not allow you to go after govts
2. only FSIA (the exceptions to) allow you to do so
iii. Was it really the intention of the law to be so narrow as to only apply to ousted govts?
1. NO
a. Intent to go after individuals that had violated the law of nations
d. Sosa v. Alvarez-Manchain (’04): Mex doc abducted by DEA agents and brought to US for trial in
connection w/ torture death of an agent in mexico. Allegation is that Alvarez kept the guy alive so they
could torture him longer.
i. A-M loses, then A-M brought to trial- not enough evidence to link him. Then A-M brought suit
against sosa
ii. Won in district
iii. Won in 9th circuit
1. *at this point- a movement to get rid of ATS
iv. SC ruled that his abduction lasted only 24 hrs and had no physical effects- and not a violation of I
law
1. some say- lost the battle- this case- but won the war b/c didn’t just overrule ATS
2. court adopted a rule of evidence- courts should require any claim based on the law of
nations to rest on “a norm of I character accepted by the civilized world and defined w/a
specificity comparable to the features of the 18th C paradigms we have recognized
(violations of safe conducts, infringements, of the right of ambassadors and piracy)
e. Ibrahim v. Titin- supplement p. 65
i. Case brought under ATS
1. Usable by aliens
2. Tort
3. In violation of law of nations/or a treaty of US
a. Ibrahim- involves CoL when D is a multinational corp
i. There are many cases against corps for multinational human rights violations
ii. Ibrahim not so successful, but others have been – ie Unocal, Gap- factories in Sypan, Shell- in
Nigeria
b. Titin- supposedly in cahoots w/US: Titin – interpreters, CACI- interrogators, that tortured P’s
husbands
c. Private torture isn’t a violation of law of nations- need state sponsored torture
i. Some things don’t require state action- ie genocide
ii. Sometimes a private actor so enmeshed w/a state = complicit
d. Here, don’t have requisite state action
e. Private torture- ie domestic abuse- not violation of I law b/c not under state auspices
i. *but failure to prosecute can be
f. so P’s common law actions can go forward against Titain and CACI
i. but ATS is not going to work
g. recent cases in this area address the problem of where courts will look for aiding and abetting standard
i. international standards, restatement, state law
65
 ii. court will have to choose where to look for the applicable standards
1. here, court doesn’t discuss this
2. to an I lawyer this is bizarre that a state can privatize its way out of an I law violation
(state can’t privatize a prison and get out of torture prosecution)
iii. courts split on aid and abet standard
1. 2 examples
a. case against caterpillar – sells them to Israeli army- used on to destroy a
palenstinian home- and killed a us worker in the process. Her fam suing
caterpillar for aiding and abetting in death- hard b/c of double use of bulldozer-
i. too attenuated a relationship- no prox cause
ii. harder case if caterpillar knew how the bulldozer would be used- might
be more likely to trigger aid and abet
b. talisman- complicit w/sudan for genocide
i. t provided helicopters used by sudan military to go into areas near where
pipline talisman was building
ii. record shows that talisman ceo knew that this was providing security for
pipeline (so knowingly aiding and abetting in genocide)- basically knew
that business venture required human rights violations
iii. when forward on L issues
h. standard for aiding and abetting?
i. Knowledge?
ii. Knowledge + benefit?
iii. Knoweldge + benefit + more?

66