Conflicts of Laws Outline - Uncategorized 2

8/9/2019 Conflicts of Laws Outline - Uncategorized 2

1/55

Conflicts of Law Outline

I. Traditional Approaches to Conflicts of Lawa. Traditional Theory- Territorial Approach (1st Restatement, eale, !ested

Ri"hts, le# loci$

i. %istory of Conflicts Law- %istorically (&uropean common law$territorial approach was used ('ud"e tory- 1st Restatement ofConflicts$ currently, interest of states has e)ol)ed- dissatisfactionwith ri"idity.

ii. !ested Ri"hts Approach (eale$- locali*e e)ents of multi-state, place in one state- +or a forei"n suit, althou"h the act complainedof had no force in the forum, it "a)e rise to an oli"ation, whichfollows the person, and may e enforced where)er the person may e found.

1. criticism- adopt the law of the forum.. omestic rule of the forei"n state- when a forum case

comes to the forum, it should apply its own law ut adoptand enforce as its own law a rule of decision identical, orhi"hly similar to a rule of decision found in the system oflaw in force in the other country or state

iii. isad)anta"es- potential for aritrariness, in/ustice- why would theforum e)er not apply their own life0

i). Tort- law of place where accident occurred1. lace of wron"- use law of the state of conse2uences, not

ori"inal wron"3 ne"li"ence- where did the force impin"e onhis ody0

a. &ach state has le"islati)e /urisdiction to determine

the le"al effects of acts done or e)ents causedwithin a territory. . Laws of the state are intended to possess an

e#clusi)e so)erei"nty and /urisdiction within itsown territory, and all persons who are residentwithin it and contracts made and acts done within it.

c. Compensate for the harm they suffered-d. redictaility- protectin" reasonale e#pectations of

the partiese. 4niformity3 admnisterailityf. iscoura"ement of forum shoppin"

. 5here harm is done to the reputation of the person, the place of wron" is where the defamatory statement wascommunicated.

6. In)asion of pri)acy- law of the /urisdiction where waswhen his feelin"s were wounded.

7. ceptions to place of wron" test8


2/55

a. If the wron" depends on the application of thestandard of care, that standard should e ta9en fromthe law of the place of the actors conduct

. A person, re2uired, foridden, or pri)ile"ed to actunder the law of the :place of actin"; should not e

held liale for conse2uences on another state.reat outhern Railroad ). Carrolla. Train was owned y AL corp, ne"li"ent inspection

in AL, Carroll is a resident of AL in/ured in ?

. AL- employer liaility- train was lialec. ?- fellow ser)ant rule- insulated employer fromliaility y other employee@s ne"li"ence

d. lace of in/ury rule- Carroll@s ri"ht to reco)ery)ested at time of in/ury, therefore ? law applies

). Contractin"1. ?ili9en ). ratt

a. ?& partnership to purchase "oods, done in ?A andmailed to ?&

. ?A- married woman could not act as a "uarantor c. ?& allowed married women to act as a suretyd. %oldin" that contract was made in ?&- ecause of

dateline on contract, B was complete with receipt of "uaranty

e. If a contract is completed in another state, it ma9esno difference whether the citi*en of this state "oesin person, sends an a"ent, or writes a letter, acrossthe oundary lines etween the two states.

. lace of Contractin"a. 611- lace of contractin"- principal e)ent

necessary to ma9e a contract occurs. . 61- formal contract- effecti)e on deli)ery, place

of contractin" is where deli)ery is madec. 66- Informal 4nilateral Contract- where the e)en

ta9es place that ma9es the contract indin"d. 6


3/55

ii. y other means- state from whichacceptance is sent.

f. 66- !alidity and &ffect of the Contract-etermined law of place where contract was made(capacity, necessary form, consideration,

re2uirements to ma9e a promise indin", time and place where the promise is to e performed,character of the promise$

". 6


4/55

e. Land Taoo- trumps full faith and credit clause, IL /ud"ment would not ind IA courts.

6. omicile (/udicial construction, opposed to residence-le"islati)e term usually meanin" without intention to stay$

a. A person has one domicile and only one domicile-

. coe#istence of physical presence and intention toremain.c. A person may not ha)e a sufficient relationship to

his domicile unless he has een there for asi"nificant time.

d. In the modern approach, domicile shifts dependin"on the urden (i.e. ta#es ). intestate succession$- Ifthere is a rupture in marital relations, the wife mayac2uire her own domicile e)en if she is the party atfault.

e. 1st restatement said that a husand could not chan"e

his domicile without "oin" there first himself, utnd restatement pro)ides a wife@s presence mayser)e as a sustitute

f. If home straddles the order- could e principalentrance, place where the person sleeps.

". A person cannot (1st R$ or does not usually (nd R$ac2uire a domicile y presence in a place under physical or le"al compulsion.

h. ?arria"e- (1st R$- )alid e)erywhere if le"al in statewhere contract of marria"e ta9es place.

i. Corporation- law of the state of incorporation. /. 5hite ). Tennant

i. the law of the state in which decedent hadhis domicile at the time of death will controlthe succession and distriution of his personal estate.

ii. Conflict etween 5! and A- A controlled ecause 5hite had mo)ed to A and had nointention of returnin" althou"h he died in5!.

. &scape e)icesi. 4sed y Court to escape ri"id application of 1st R

ii. Characteri*ation- 'ud"e must determine what rule applies.Contract3 Tort0 Is there a method to ma9e characteri*ation process predictale0

1. Recharacteri*ation- when result of o)ious rule would econtrary to the party@s interest, loo9 at real interests ofstates and parties.

a. Loo9in" directly at states interests is )a"ue andeasily manipulale


5/55

. Loo9 for the answer that is most /ust, intellectuallyhonest.

. Le)y ). aniels 4-ri)e Auto Rentin"a. Car rented in CT, y CT dri)ers and passen"ers-

ne"li"ent accident in ?A

. CT- car leasin" co is liale for accidents of dri)erwhile rented (did not apply in ?A$c. 1st R would apply ?A law this court characteri*ed it

as a contract issue- ecause was a 6rd party eneficiary of the contract.

d. Court made statute part of e)ery car leasin" contractin CT- ecause the purpose was to re"ulate hi"hwaysafety, not contracts.

e. Concentrate more on fairness of results-recharacteri*ation occurs when the results seemun/ust.

6. %aumschild ). Continental Cas. Co.a. % sued former husand and insurer in 5I for anaccident in CA.

. CA law does not allow a wife to sue a husand intort, 5I law does.

c. Court recharacteri*ed this was to family law toallow suit.

d. Connect up contacts with policy- here, maritalharmony is connected to marital domicile, collusionconnects to insurance oli"ation

e. ?a9e sure that oth states ha)e interests- a)oidfalse conflicts

'urisdiction CA 5IC

Contacts Accident, medical ills

+orum, domicile,insurance oli"ation

Law Immunity Eo immunity

olicy ?artial harmony, pre)ent fraud andcollusion

Case can "o forward,allowscompensation,spousal reco)ery

7. reine ). +reeman-

a. released 3< of /oint tortfeasors from liailitycontracts in EF, and CO. . !A law holds that release of one tortfeasor G result

of all- which was applied, the construction and)alidity of a release is "o)erned y the law of the place where the contract was e#ecuted, ut its)alidity is /ud"ed y the law of the place of in/ury.

iii. ustance ). rocedure


6/55

1. 1st R- 5hen forei"n law is applicale it "o)erns thesustanti)e law, the procedure is "o)erned y the laws ofthe forum. (6H$

a. rant ). ?cAuliffea. Accident in AJ, with 7 CA dri)ers and passen"ers,

ullen died and ?cAuliffe was appointed testator . AJ law- no suit a"ainst estate if tortfeasor is dead

(emphasi*es fairness to sur)i)ors, )icariousliaility$

c. CA law-suit can e maintained after death oftortfeasor. (emphasi*es reco)ery and fairness$

d. Is sur)i)al of a cause of action sustanti)e or procedural0

i. This is a statutory action for wron"ful death- ut sur)i)al statutes are not statutory, they pre)ent the aatement of the cause of actionof the in/ured person, and pro)ide forenforcement y or a"ainst the personalrepresentati)e of the deceased.

ii. Analo"ous to OL and "o)erned y laws ofthe forum.

iii. 1st R- sustanti)ei). outcome determinati)e- "i)es a cause of

actione. All parties are residents of CA, estate of deceased

tort feasor administered in CA, this state clearly hasthe "reater interest- false conflict

f. issent- ur)i)al action can create a ri"ht3 cause ofaction- inconsistent to rule a"ainst Cort ). teen


7/55

6. Cort ). teen- CA supreme Court said that sur)i)al statuteswere sustanti)e and did not apply retroacti)ely- this iscircumstantial.

7. ournias ). Atlantic ?aritime Co. Ltd. a. was a seaman on @s )essel as it was chan"ed

from anamanian to %onduran re"istry, sued underanamanian laor code- arred y anama OL . OL is usually classified as procedure- ut when a

forei"n OL is re"arded as arrin" the forei"n ri"htsued upon and not merely the remedy, it will etreated as conditionin" that ri"ht and will eenforced as sustanti)e.

c. Test8 5as the limitation tied up with the newlycreated liaility specifically to 2ualify the ri"ht0

d. %ere, since the OL was for a forei"n country, it isnot clear on its face if the purpose was to limit

enforceaility- therefore procedure of the forum isapplied.


8/55

sustanti)e law sendin" it ac9- circular reasonin"- whoselaw is applied0

a. +orum finds reference in heir own law to applyanother forum@s law

. If whole forei"n law refers ac9 to the forum.

. Remission- If ren)oi is accepted and the state whose choiceof law rules are e#amined refers the case ac9 to the law ofthe forum state.

6. artial- forei"n choice of law refers to internal law of theforum state

7. total- forei"n choice of law refers to whole law.


9/55

1. Always a part of conflicts, difficult to reconcile with )estedri"hts.

. ?ust e a dramatic departure of the court@s idea of /ustice3fairness.

6. 1st R =1- recludes suits upon a cause of action created in

another state the enforcement of which is contrary to the pulic policy of the forum.7. Court should loo9 to determine pulic policy8

a. Le"islati)e deates . Constitutionc. ulic Opinion

ermany ecause he

was a 'ew . ulic policy e#ception did not ar defenses of law-c. ?aintenance of EF policies8

i. International policy conte#t- state courtsshould not /ud"e a forei"n so)erei"n acts(act of state doctrine$


10/55

ii. If the effects would e remote to the forum,they will apply the forei"n law, ut an actualstron" and ad)erse interest of the forum will prompt the court to refuse the application offorei"n law.

D. Application of ulic policy e#ception- penal and ta# lawsof another /urisdiction will not e enforced, as they areintimate notions of another state@s identity.

a. enal Laws8i. Awards a penalty to the state, pulic officer,

or memer of the pulic suin" in thecommunity interest to address a pulicwron".

ii. Criminal lawsiii. oes not include wron"ful death or

corporate director@s misconduct- ecause

they satisfy a pre-e#istin" claim of ri"htc. leadin" and ro)in" forei"n Lawi. 1st R- must tell court e#actly what law should e applied.

ii. 5alton ). Araian Oil Co.1. AB citi*en and & corp- accident in audi Araia. Law uit in EF- declined to plead audi law and case

was dismisseda. Lac9 of administeraility . audi law was unci)ili*ed- If pro)ed that audi

law was unci)ili*ed court may apply 4.. law under the pulic policy e#ception.

6. Affirmed y nd Cir.- failure to pro)e forei"n law is fatal toa case- a /ud"e will not ta9e notice of forei"n law, it is theresponsiility of - issue of fact, and an essential part of @sclaim

7. !ested Ri"hts Theory- has a urden to pro)e forei"n lawas an element of the claim

iii. ie"elman ). Cunard 5hite tar- Court too9 /udicial notice ofritish law when it was not pleaded 3c ritish law is so muchmore similar to 4.. law.

i). Eotice and roof of Law1. ome courts assume laws are the same if not pro)en. Court can ta9e /udicial notice of the law of a sister state ut

here, forei"n law is so forei"n to this /urisdiction.6. tatutes Authori*in" courts to ta9e /udicial notice in

pleadin"s or reasonale notice7. +orei"n law must e pleaded li9e other facts, in conformity

with the e)idence, decided y a trier of fact, su/ect to onlylimited appellate re)iew.


11/55


12/55

II. ?odern Approaches to Conflicts of Lawa. tatutory olutions

i. Administeraility, uniformity 4T statutes may e no moredeterminati)e then common law.

ii. +orei"n ecuted 5ills8 most states ha)e wills e#ecuted outsidetheir state of administrationiii. 4CC

1. 5hen a transaction ears a reasonale relation to this stateand also to another state or notion, the parties may a"reethat the law either of this state or the other may "o)ern theri"hts and duties- Act applies to transactions earin" areasonale relation to the state.

. 9inner- 4CC-a. Court must characteri*e issues to select the

appropriate choice of law pro)ision.

. The mere fact that suit is rou"ht in this state doesnot ma9e it appropriate to apply the sustanti)e lawof that state.

i). Insurance8 ?ost states no-fault insurance plans delimit their scopein multi-state situations.

). orrowin" tatutes-1. directs the forum to dismiss claims under forei"n statutes of

limitations in appropriate circumstances. nd R- 17- +orum will apply its own OL arrin" a claim

unless e#ceptional circumstances of the case ma9e suchresults unreasonale.

6. tollin" statutes- suspend the runnin" of the OL a"ainst outof state defendants.

7. 5est ). Thesis- limitations are procedural and a)oidin"forum law controlled procedure

. arty Autonomy and Rule of !alidationi. 5hy is Rule of !alidation a ad idea0

1. a"ainst pulic policy of forum state. lets the party commit le"islati)e act y displacin" law of

the so)erei"n6. Eeed sustantial relation to one of the states7. re"ime ased on party autonomy will undermine local laws.


13/55

6. Appeal was unsuccessful so had to pay, contract wasunenforceale in EF, ut )alid in LA.

7. up. Ct. applied LA law- center of "ra)ity, where liti"ationoccurred.


14/55

c. In the asence of contrary indication of intention,the reference is to the local law of the state of thechosen law. (or most si"nificant relationship$

)ii. Alternati)e Choice of law rules for Contracts1. !alidity of a contract is to e decided y the law of the

place where contract is made, unless it is to e performed inanother country. If it is to e performed in any other place,the intention of the parties that the contract- re8 )alidity,nature, oli"ation, and interpretation is to e "o)erned ythe place of performance.

. freedom of contract remains dominant in most states- withsome restrictions (i.e. nd R$

6. 'uen"er- arties should e free to select their own rules thatreflect commercial practice and the est law without re"ardfor the desires of any particular so)erei"ns.

7. If the parties fail to chose applicale law- use whiche)er

law upholds the contract (used re8 usury cases, 6-sustantial relationship and cannot e "reatly in e#cess tothe "eneral usury law of the state$


15/55

est to apply local law which will estachie)e the asic policy.

)i. Certainty, predictaility, and uniformity-1. discoura"e forum shoppin". more important when parties "i)e

ad)ance thou"ht to le"alconse2uences of their transaction.)ii. administeraility

. 17


16/55

. Contract was si"ned in CO- ne"otiations in E?, CO, andCA. halted ecause >a"non had no E? license- reco)eryin CO, not E?, EF treat complaint as in)alid.

a. Loo9 at where ne"otiations occurred . Loo9 at where construction is done- when

performance is ille"al in the place of performance,the contract will usually e denied enforcement.c. %ere, E? has a re"ulatory scheme for Licensin"3

Construction6. E? law applies- does no allow estoppel

). hillips ). >? (Torts$1. Truc9 purchased in EC, then mo)ed to ?T, dro)e ac9

across country- accident in B. hillips is therepresentati)e o &states3 le"al "uardian- li)es in EC.

. used nd R- 5hich states laws should apply0a. - ?T- no limit on roduct liaility, strict liaility

Court a"reesi. 17=, 1K


17/55

1. cases try to reconcile statutory interpretation of 1HDD-attorney fee reco)ery pro)ision of +RC =D

. osner8 le"islature interpreted in li"ht of purposes was passed to rin" meritorious ci)il ri"hts claims, should pre)ail after settlement

6. upreme Court8 Lan"ua"e, not purpose should e analy*ed-must 9eep ci)il ri"hts suits on par with all other lawsuits7. Interpretation- loo9in" at different ways determines how

law will e applied- domestic conflictsi). Currie@s Theory3 >o)ernmental Interest Analysis

1. Interest Analysis should only e tri""ered when stat@sdomiciliary is concerned- must distin"uish etween trueand false conflicts

. Courts should determine the applicaility of a law ye#aminin" the law@s purposes- application must achie)e the policy "oals sou"ht y a so)erei"n which passed the law.

6. 1

st

R ne)er achie)ed uniformity ecause of escape de)ices- ut we should )alue /ustice o)er uniformity.7. +alse Conflicts8

a. All policies end up on one side of the led"er . OR it does not matter which policy is applied

ecause they will all dictate the same result.c. In some cases, depeca"e will separate true and false

conflictsd. ?ili9en- false conflict occurs when creditor and

woman are from the same state.


18/55

. ?A- married woman could not ind herself ycontract as surety for husand or any 6 rd party

c. 4T at the time of the suit, a ?& li9e proposal wasintroduced in ?A and decisi)ely defeated- it is notthe usiness of the courts to sustitute their

/ud"ment for that of the le"islature.). ifficulties of interest Analysis81. myth of le"islati)e intent. replaces territorialism with emphasis on domicile6. promotes forum shoppin"7. 4T results may e less aritrary- why should a law apply

if its policies will not e ad)anced0)i. +alse Conflicts

1. Too9er ). Lope*a. ?I student in ?I car accident, EF resident, car

re"istered and insured in EF- EF is the forum

. +alse Conflict- ?I "uest statute prohiited reco)ery y "uest statute a"ainst host dri)er unless "rossne"li"ence-

i. to pre)ent collusion- EF insurancecompany, co)ers out of state in/ury,

ii. assure priorities of dri)er in reco)ery- notefficient as those findin" ne"li"ence can sueanyway.

iii. doc9et clearin"- EF forumc. Interests of ?I8

i. Re"ulation of their own roads- this is a suitaout reco)ery

ii. ?I does not protect the passen"er, e)enthou"h a ?I resident, why should EF

d. issent8 nd R tests yields opposite results- shouldapply the law of the place where accident occurred-"oals of uniformity.

. chult* ). oy coutsa. e#ual molestation and wron"ful death case y a

scout master

'urisdiction EF E' TM O%

Contacts -Conductstarted on trip-forum

-Conductcontinued in E'-uicide- domicile ofarents andoy couts

oy coutschan"eddomicileafter case

+ranciscanrosincorporated.

Law Eo charitaleimmunity

Charitaleimmunity

Eocharitale

Nualifiedcharitale


19/55

immunity immunity

olicies -eterrence3re"ulateconduct-compensation

-&ncoura"echaritale or"-allocate losses-doc9et control

. Loss Allocation Rulesi. ost-hoc compensation for tortuous conduct,

usually apply the law of the commondomicile.

ii. itus has a minimal interest in determinin"the ri"ht of reco)ery or the e#tent of theremedy in an action y a forei"ndomiciliary.

iii. ee Eeumeier rulesc. Conduct control- deterrence, apply law of the place

of the tort

i. rotect medical creditors who ser)icedin/ured parties in that state- this and wardsdo not apply in this case.

ii. re)ent in/ured tort )ictims from ecomin" pulic wards in the locus state

iii. eterrent effect on future tort feasors. EF@sdeterrent interest is less ecause none of the parties is a resident and rule is lossallocatin", rather then conduct-re"ulatin".

d. Reasons for Applyin" law of common domicile8 E'i. Reduce forum shoppin"

ii. Reuts idea of a iased forumiii. 4niformity3 mutuality- contradicts ro- ias

i). Administeraility). ut does E' really want to protect a

charitale or"ani*ation that has since mo)edout of state

e. +ranciscan ros- Choice etween EF and E' law-althou"h law of the place of the tort would usuallyapply, further enforcement and EF has no interest-enhance smooth wor9in" of the multi-state system.

f. Court has e)er decided when interests should edetermined, i.e. conduct, e"innin" of liti"ationi. Chan"e of domicile for oy scouts "i)es no

"reater interest to any state.6. Eeumeier Rules for loss allocatin" cases8 arise mostly in

"uest statute cases- these are standardsa. If there is a common domicile of , and the car

is re"istered there, then apply that state@s law


20/55

ecause the law of the place of in/ury will ha)e noconnection- false conflict (Too9er, chult*$

i. Reduces forum shoppin" . 5here is in a pro- state and conduct occurred

there, e)en if is from a state that is pro-, or if is

from a pro- state and conduct occurred there, e)enif is from a proG state- apply the law of the statewhere the conduct occurred.

i. lace of in/ury is a neutral factor- and reuts pro-forum presumption.

c. Other circumstances- no common domicile, usuallyapply the rule of where the conduct occurred unlessit should e displaced to ad)ance sustanti)e purpose3 multi-state interests (chult*$

i. This pro)ides an a)enue for disre"ard of the asic "oals.

d. These rules were drafted for "uest statutes ut could e applied in other cases- must e a conflict etween laws that allocate loss after a tort hasoccurred.

e. ?any rules ser)e oth loss allocatin" and conductre"ulatin" purposes

f. Apply in tort cases only, contract cases use thecenter of "ra)ity test- no policy analysis needed

7. Cooney ). Os"ood ?achinerya. Blin" whose interest succeeded to %ill sold

machine to American td. (EF$ throu"h a EF salesa"ent (Os"ood$

. ?ueller (?O$ "ot machine, and his employeeCooney "ot hurt and sued entire chain

c. ?O law- there is no tort liaility for wor9ers compi. Contacts- @s dom, employer, ro-, in/ury

d. EF law- contriution claims a"ainst employeesi. Contacts- claimant for contriution, pro-

Claimante. This is a true conflict (nd Eeumeier rule$ , therefore

?O law was applied ecause conduct happenedthere.

i. rotection of reasonale e#pectations-?ueller could hardly e#pect to haled efore a EF court for in/uries to a ?Oemployee in ?O.

)ii. 4npro)ided +or Case1. &rwin ). Thomas-


21/55

a. (5A$ was in/ured in 5A y (OR$- @s wifesued for loss of consortium, allowed in OR, not5A.

. If neither state has an interest, the law of the forumis applied ecause of con)enience, administeraility

c. If forum is committed to interest analysis8i. Apply the law that is more enli"htened orhumane

ii. Apply law that aids local liti"antiii. Treat forei"n claimants as they would e

treated in their own statei). Law of the forum PP (est$

)iii. Resol)in" True Conflicts1. Lilienthal ). Baufman

a. promissory notes made y OR spendthrift withofficial "uardian

'urisdiction CA OR Contacts @s domicile, contract made and performed @s domicile, forum

Law oes not reco"ni*e disaility of aspendthrift to contract

pendthrift statute(protection$

olicy Contracts are enforceale, a)oid fraud rotect and family

. 4nder interest analysis, OR law applies- althou"hthere are many CA contacts protection of family andspendthrift are most important.

c. Resol)e true conflicts y law of the forum- toconsistently ad)anced the policy of its state wherethere is no solution. Courts cannot ade2uately

discern which state has a more si"nificantle"islati)e interest.d. OR has interest in promotin" citi*ens of other states

to conduct usiness with ORe. In interest analysis, loo9 only at policies of laws in

conflict, ti"ht focus.f. issent- this road deference to le"islation may

pro)e too much- - OR le"islature may ha)e alanced law differently if they 9new that thiswould affect out of state residents.

. Law of the +orum- Criticisms

a. &nd of rule of )alidation . iscrimination a"ainst non-residents- or is the realsource of discrimination the une2ual treatment ofsimilarly situated residents if the forum departsfrom forum law.

c. +orum hoppin"d. If a true conflict is rou"ht in a disinterested third

state- that state should attempt to dismiss for +orum


22/55

non con)ieniens, then apply the most humane lawor one most similar to their own.

6. ern9raut ). +owler a. and ecedents made oral contract to for"i)e a

det, did not put it in his will. dies in CA,

forum in CA- all other contacts in E!. . CA law says this is not )alid- )alid under E! lawc. Court relies on E! law to protect the reasonale

e#pectations of the partiesd. CA policy- moderate and restrained interpretation

ased on /ustifiale e#pectations of the parties- doesnot apply its own law

e. tatutory interpretation usually does not loo9 toe#pectations of pri)ate parties ut used to see policy ehind the law- reachin" out eyond the 7 cornersof the law.

7. ernhard ). %arrahs (CA$a. ?yers (CA$ "ot drun9 at %arrah@s in E! thencollided with in CA, sued %arrahs for sale andfurnishin" alcohol

. E! law- denies reco)ery of ta)ern owner3 fa)oraleto usiness

c. CA law- reco)ery if pro#imate cause of in/ury3 protect "eneral pulic from in/ury

d. CA Comparati)e Impairment olicy for trueconflicts- CA must e ale to enforce their ownlaws to usinesses that solicit to out of state- E! purposefully a)ailed itself onto CA law.

e. %ere, E! law would e less impaired ecause E!had criminal liaility on oo9s already had duty.CA imposes their own ci)il liaility on E!- ut notan entirely new remedy


23/55

6. implification of the 'udicial tas9- sustanti)e ). procedural

7. Ad)ancement of +orum@s >o)ernmental Interestseneral Casualty Insurance Co. of 5I1. ?E resident has accident in AJ, with usiness in Einsurance policy.

. ?E- allowed stac9in"- could "et for each car in)ol)ed inthe accident

6. E- no stac9in" (applied y ?E court- case y casedetermination$

7. Choice of Law Considerations


24/55

a. redictaility of Result-i. oth contract and tort principles apply

ii. ?utual e#pectation that they had ne"otiateda E contract- paid no rates- ?E rates werehi"her

iii. 5ould other states apply ?E laws in thesecircumstances . ?aintenance of Interstate Order

i. +orum shoppin"- su)ert insurance wherestate to state tension

ii. 5ould impede E@s policy3 mo)ement of people and "roups

c. Administeraility in oth casesd. Ad)ancement of +orum@s >o)ernmental Interest-

i. ?E policy to uphold contractsii. 5hat is ?E Q@s interest now that ' li)es in

AJiii. o not want to interfere with policies ofso)erei"n states

e. etter Rule of Lawe. rolem Old and Eew

i. epeca"e-1. of issues in the case are di)ided and different laws are

applied. e#ample8

a. in/ured in C (1 year statute of limitations$ suescar owner in AB (no liaility to car owners thatwere not dri)ers, lon"er OL$

. AB "a)e C law on liaility ut C law dictatedOL

c. This remedy could not e achie)ed under thesustanti)e law of either state.

6. ?arie ). >arrison-a. EF court- is oral a"reement arred under tatute of

+rauds under ?O or EF . Contract was enforceale ecause declared )oid

anythin" not writtenc. ?O- procedural, therefore unenforcealed. Court enforced B, did not apply either law.

7. Adams ). Bnic9eroc9er ociety (ima"inary case$a. >riswold- use 1st R ecause it is asurd to reach a

result not applyin" the internal law of either state,apply law of only one /urisdiction

. Currie- use "o)ernmental interest analysis, does notli9e premise of splittin" law to "et a result notcontemplated y laws of either state.


25/55


26/55

ii. American Airlines- ne"li"ent maintenance . Lower Court

i. used most si"nificant relationship test ofILL- applied Bla#on

ii. uniti)e ama"es- loo9 to law in each @s

c. Re)ersed8 Eeither ef. >ot puniti)e dama"es,d. Applied IL law 3c compromise states with

conflicts- loo9 for ease of administerailitye. omicile of @s do not matter f. Compariti)e Impairment8

i. Is there a true conflict0ii. Is a restrained and moderate approach

possile0iii. ince law of states would e e2ually

impaired- used IL law

. In Re A"ent Oran"e8 ( million !ietnam )ets$a. +ed common law should "o)ernSstruc9 down yappeals court

. Assumes national consensus lawi. Con)er"ence- not /udicially forced upon

states with any federal authorityii. 'ud"es try to pro)e that despite different

methodolo"ies, same application of lawwould result.

iii. Coerced settlement- /udicial wi""lin".6. ?ass Actions

a. ALI Comple# Liti"ation ro/ect =.1-clarification, limits etc.

. ?ulti-state Class Actions- choice of law can ma9eor rea9 classifications

i. If choice of law points to one wor9ale law,that class is certified

ii. Le# loci- (rid"estone$- tate of each @saction, this is a no)elty- financial loss ineach of


27/55

III. The Constitution and Choice of Lawa. Limits of Le"islati)e 'urisdiction

i. Constitution must pro)ide a aseline for holdin" efore somethin" ecomes )iolation of due process or e2ual protection

ii. Constitutional rotection for Choice of law81. reduce interstate friction. pre)ent unfair treatment to parties3 indi)idual fairness6. Limits states le"islati)e aility

iii. Can +orum apply its own law8

Fes Eo

Alas9a ac9ersAlltateacific &mployer

%ome Insuranceradfordhutts

i). ue rocess

1. %ome Insurance Co. ). ic9 a. oat was specified in ?M, reinsured in EF. ic9was ?M citi*en, li)in" in TM

. TM tatute- in)alidated 1 year limit to rin" claimto rin" claim which was )alid under ?M law

c. ic9 sued in TM- ut TM could not apply its ownlaw ecause of insufficient contacts.

i. Eeed physical contacts esides the forumii. Althou"h it was @s domicile, insurance

oli"ation and oat were in ?Miii. TM lac9s power to ta9e property ri"ht of

?Md. Is there unfair surprise to insurer3 parties0 Fes- EFor ?M insurer could not e#pect TM law to apply

. Is Territorialism Constitutionally Re2uired0a. EF Insurance Co ). od"e- Court has not adopted

place of contractin" ut minimal scrutiny to pre)entunfair surprise

6. oes the Constitution >uide Courts in their Choice of LawRe"ime0

a. ?inimally- ?inimum contacts for ue rocess isharder test then for ersonal 'urisdiction

. oes not dictate Choice of Law unless law of statehas insufficient contacts.). +ull +aith and Credit

1. radford &lectric Li"ht ). Clapper a. oth arties are from !T, ut conduct occurred in

E% as a result of @s ne"li"ence- Lawsuit in E% . !T- e#clusi)e wor9ers comp remedyc. E%- can either file for 5C or rin" tort action


28/55

d. E% court applied their own law ut o)erruled 3c of ++C- ecause of o)erwhelmin" contacts in E% (due process is satisfied 3c this is the place of theaccident$

e. istinction etween claims and defenses- E% is

oli"ated to "i)e ++C to !T defensesi. &ffecti)eness of !T lawii. E% policies are not implicated y the facts

of this caseiii. This loo9s li9e a false conflicti). ulic policy e#ception used

. Alas9a ac9ers ). Industrial Acc. Comm.a. &mployee hired in CA to wor9 in AB, in/ured in

AB, sues in CA . B pro)ision to use AB law ut conflicted with CA

statute- must satisfy urden of proof that AB@s

interest was strin"er then CA (alancin" test$-Tilted in fa)or for forum to apply own law6. acific &mployers Ins. !. Industrial Acc. Comm@n

a. ?A employer sent employee to CA ranch temp,in/ury and suit in CA

. 5or9ers Comp pro)isions conflict etween ?A andCA- Court applied CA law

c. ++C does not allow le"islation across state lines,distin"uished radford ecause !T and E% lawswere not in direct conflict (no alancin" test$

7. tate Interests and the Constitutiona. Tests8

i. ++C (interstate friction$ ). ue rocess(indi)idual con)er"ence$- supreme courtapplies test aritrarily

ii. 1. +airness ron" (ic9- unfair

surprise$. Nuid ro Nuo- enefits, therefore

urdensiii. tate Interest8 must e le"itimate, implicated

in the facts of the case.)i. Con)er"ence

1. Allstate Ins. !. %a"uea. Car Accident in 5I etween 5I residents, suit in

?E ecause of stac9in" policy . ?E court uses Leflar approach, stac9in" is etter

law- lurality accepts ?E law o)er ++C and challen"es


29/55

i. &mployment contacts- e)en thou"h did notseem to e implicated in the facts of thecase.

ii. Allstate does usiness in ?E1. +air to e#pect forum

. 2uid pro 2uo6. issent- only allowed in certainstates, usiness plannin"

iii. 5ife ($ then mo)ed to ?E1. protection of state residents- not

wards of the state. tandin" alone is not o9- will

pro)ide forum shoppin"c. ar is set really low to meet ++C and - must e

more then /ust a forum. hillips etroleum ). hutts

a. Class Action- B court applied its own law e)enthou"h HH of the leases had no B interests . 4nconstitutional 3c of lac9 of contactsc. rocedural efficiency should e important in

comple# class actionsd. Test8

i. i"nificant contacts or a""re"ation ofcontacts- state interests

ii. +airness- cannot e aritrary or unfair.6. ?inimum Contacts and Choice of Law

. Oli"ation to ro)ide a +orum- If one state pro)ides a cause of actionmust another state pro)ide a forum

i. %u"hes ). +etter 1. IL statute in 5I court for wron"ful death was dismissed

ecause 5I had a law a"ainst suits ased on forei"nwron"ful death statutes.

. up Ct. held that 5I policy should e suordinated for ++Cto pulic acts of other states- "eneral discrimination a"ainstthe laws of one state is an ++C )iolation

a. Eo anta"onism to wron"ful death cases in "eneral(i.e. contrary wron"ful death statute, true conflict, if OL is ound up in statute$

. 5I cannot escape this constitutional oli"ation toenforce the ri"hts and duties under the laws of other states y remo)in" /urisdiction

c. There are minimum contacts in 5I- conduct in IL, ut parties are 5I residents

d. This case merely dealt with the oli"ation to pro)ide a forum, not "i)in" a special sustanti)eri"ht to parties (contrary to AB ac9ers$


30/55

6. Laws that promote state o/ecti)e y pre)entin" forei"naction will e o)erridden y ++C, if statute promotessustanti)e ri"hts then "i)en more deference.

7. limitations on Rule8a. +orum non con)eniens

. A)oid urdens on forum courtsii. &2ual rotection1. ustanti)e Ri"hts- states may define sustanti)e ri"hts

differently and so lon" as the forum has a le"itimateinterest (pulic policy conflict$- the forum may apply itsown law

. 5ithholdin" from state courts power to entertain claims ased on another states@ laws- directly at odds with ++C-must e su/ect to strict scrutiny- must ha)e a specific /ustification, that is narrowly tailored to fit the /ustification.

iii. Tenn. Coal Iron ). >eor"e

1. >eor"e in/ured in AL, rou"ht suit in >A under AL code-code allowed suit ut said it must e rou"ht in AL. The Cause of action was transitory and therefore could e

rou"ht in an AL court- which must "i)e ++C- no need to"i)e ++C to /urisdiction selection mechanism, )enue is not part of a ++C ri"ht (not wrapped up in sustanti)e ri"ht$

%u"hes Tenn Coal

Cannot discriminate a"ainstforei"n state@s cause of action

tatute cannot discriminatea"ainst forei"n forum- unlesscompletely wrapped up in

cause of action (unli9ely$

i). tate ower to Beep Liti"ation at %omec. 4nconstitutional iscrimination in Choice of Law- tate iscrimination

A"ainst other tates@ Citi*ensi. upreme Court of E.%. ). iper

1. !T resident applies to E% ar- not allowed 3c limited to E% residents

. I citi*ens of each state shall e entitled to all I(includin" employment$ of citi*ens in se)eral states, utcan discriminate a"ainst nonresidents for recreational

purposes6. This was unconstitutional ecause it was in)idiousdiscrimination- interest in re"ulatin" officers of the courtdoes not correlate to residents- fundamental ri"ht isin)ol)ed (employment$

7. To )iolate I must ha)e a sustantial reason for thedifference in treatment- must ear a sustantial relationshipto states o/ecti)e (intermediate scrutiny$


31/55

ii. 5hen is an interest fundamental enou"h to )iolate I8 5hen the parties ha)e /ustified e#pectations

1. >uest tatute Cases. Lillienthal- OR spendthrift statute

iii. I ). Interest Analysis8

1. In 6 years, no court has e)er held a states lawunconstitutional under I. Can e accommodated to allow forei"n states room to

ma9e their laws for their residents, comity


32/55

I!. Role of ++C and its effect on Reco"nition and &nforcement of +orei"n'ud"menta. Res 'udicata

i. +1- +irst forum to reach final /ud"ment- how much wei"ht do +,

+6U "i)e to +1@s /ud"ment0ii. +ull +aith and Credit and Limitations1. +auntleroy ). Lum

a. ? residents entered into ille"al "amlin"contract- aritration found that was indeted to anyway- ut found contract was ille"al and noreco)ery

. sued in ?O to reco)er (+1$ who assumed that ?aritration award was )alid and found for

c. then sued in ? (+$ to collect /ud"ment- whorefused to enforce under ++C

d. C re)ersed- forces + to accept +1@s /ud"ment asconclusi)ei. &rror in /ud"ment in ?O court is not a

reason for re)ersin", ut no ori"inal /urisdiction is

ii. If +1 is a +IEAL '4>&?&ET then it must e enforced (++C$- reduces interstatefriction of one state ein" ale to o)erridedecision of other.

iii. Losin" party should directly appeal in +1 tofi# mista9es

e. issent8 ++C should not e ale to oli"e + toenforce a criminal act

. Farorou"h ). Farorou"ha. +amily li)ed in >A., filed for di)orce, dau"hter

mo)ed to C and sued for more money which wasawarded, >A had "i)en lump sum of child support-final /ud"ment not su/ect to modification

. Reopenin" >A di)orce decree )iolated ++C- C@sinterest of protectin" the child was not enou"h too)erride ++C

c. Trend toward )ery small ulic olicy e#ceptionsfor ++C- Codified in 16 of nd R- i.e. di)orce,wor9ers comp, penal and ta# /ud"ment

d. issent of 'ustice tone8i. There should e a limitation to ++C- >A did

not intend to limit C@s ri"htsii. ception to ++C for ulic policy reasons

6. &l9ind- Case (>A di)orce decree$ was reopened ecausefather had mo)ed to CA, and mother mo)ed to EF, and >A


33/55

adopted 4niform Reciprocal 'ud"ment Act which e#presslyreser)ed to the state of the oli"or@s residence the power toapply its child support laws.

7. Can + "i)e "reater preclusi)e /ud"ment then +1 has0a. ?i"ht e due process issue


34/55

• Eot e harmed y

supplemental award6. Inte"rity of +ormal eclaration (!A$

• alancin" test of states

interest- o)errules ?a"nolia.

+act-findin" in administrati)etriunals are entitled to thesame res /udicata in + ascourt. ut Admin triunalsne)er consider any policye#cept that of their own state-therefore there can e noo/ection to findin" Cri"hts

• tate interest not stron"

enou"h to pre)ent other states

with o)erlappin" /urisdictionso)er particular in/uries.

e. Concurrence8i. Res /udicata should e applied to

administrati)e decisionsii. 4n-mista9ale lan"ua"e test

f. issent8 4pholdin" ?a"nolia- ultimate res /udicataiii. Land Taoo

1. Interest Analysis- oes court really care aout ownershipor is it more concerned with administeraility0

. urfee ). u9e

a. Action in E& to 2uiet title to land- 0 whether it wasin ?O or E&- resp. lost y sayin" no /urisdiction

. Resp. then sued in ?O court ut +1 decisionentitled to ++C, upheld y C- states were not ound y other courts holdin" ut cannot re-liti"ate

c. Rule is no different when claims made that ori"inalforum had no /urisdiction o)er u/ect matter-su/ect matter is fully liti"ated in the ori"inal forumand therefore could not e retried.

d. Can + re-liti"ate /urisdiction8i. Lac9 of /urisdiction o)er su/ect matter was

unclear ii. etermination as to /urisdiction was a matter

of law, not factiii. Court was limited, not "eneral /urisdictioni). Nuestion of /urisdiction was not actually

liti"ated). olicy a"ainst court@s actin" eyond its

/urisdiction is stron"


35/55

6. Thomas ). 5hitman- .ol concern to limit re)iew of /urisdiction

7. Clar9e ). Clar9ea. 5ife died and left property in CT, to 9ids and

husand in C, one dau"hter dies

. %usand sues in C for construction of the will- ifC law is applied, property is split- sues in CT fordistriution. CT law that ali)e dau"hter would "etdead dau"hters share, does not enforce

c. . Ct- law of the situs appliesd. Contrasts ur9ee 3c land@s location is not in

2uestion- /urisdiction was not fully liti"ated. Ccannot affect real estate in CT

e. Land taoo is strin"er then res /udicata- localinterest in land.

f. Is C disinterested and therefore cannot apply its

own law0


36/55

a. +1@ e2uitale /ud"ments ere not enforced in +-Court has a choice whether to enforce e2uitaledecisions

. + also does not ha)e to enforce +1@s enforcementmethods, ut if they are a)ailale they should e

enforced7. 'ames ). >rand truc9 RR a. ?I resident 9illed in ?I, sued in IL . otained in/unction in ?I to stop IL suitc. IL court issued a counter order en/oinin" RR from

enforcin" ?I /ud"mentd. tatutes en/oinin" actions in other states are not

entitled to ++C). &2uitale ecrees and oli"ation to &nforce ister tate

'ud"ments1. a9er ). >?

a. &lwell, a >? employee, had a permanent in/unction(consent decree$ prohiitin" him from solicitin" totestify a"ainst >?- unless he was ordered to testifyin court. &lwell as9ed to supoena him here.

. This case was an ?O case, and o/ected tosupoena of &lwell

c. C held that ?I court order could not e enforcedin ?O court- this is enforcement not reco"nition

i. Eo ro)in" .ol e#ception to the ++C clauseii. There is no distinction etween /ud"ments at

e2uity and law.iii. + does not ha)e to enforce /ud"ment of +1-

enforcement measures do not tra)el to sisterstates as preclusi)e effects

i). 'ud"ment precludes ori"inal parties, herea9er is a third party, therefore this is claim preclusion.

d. ettlement are within the meanin" of ++C ecauseof si"nificant in)ol)ement of ?I court forimplementin" /ud"ment

e.)i. tate 'ud"ments in +ederal Courts

1. Is this system suspicious of federal power0a. 4nder what circumstances must federal court "i)e

++C to state court /ud"ments0 . To what e#tent is Con"ress empowered to le"islate

e#ceptions to ++C oli"ations0i. Eational unifyin" force of ++C


37/55

ii. Con"ress shall ha)e power to appro)e andeffect ++C0 (i.e. oli"ation of states toaccept same-se# marria"es of sister states$

. Allen ). ?cCurrya. ?cCurry was arrested in state court, e)idence was

suppressed. ?cCurry then rou"ht a 1HD6 actionin fed.ct. C held that this action was precluded ecause he was precluded from reliti"atin" a searchand sei*ure 2uestion already liti"ated in state court.

. App. Ct (o)erruled$ held that since 1HD6 could not e ar"ued in state court there was no preclusion-federal ri"hts deser)e a federal forum

c. 5hy trust the tate Court0i. Opportunity to fully and fairly liti"ate

ii. 1HD6 should not e ale to "enerally trump++C8

1. no e#plicit lan"ua"e3 repeal too)erride ++C. +ederal remedy should only occur if8

• tate sustanti)e law is

facially unconstitutional

• tate procedural laws are

inade2uated. %ow Could ?cCurry rin" his 1HD6 action in

federal court8i. Eot liti"ate in state court e)er

ii. If there was ne)er a full and fair opportunity

to liti"ate6. ?atsushita ). &pstein Con"ressional ower to Implement

++Ca. Can a federal court withhold ++C from a state

/ud"ment appro)in" a class action0 Eo, unlessanother federal statute partially repeals ++C thefederal court must "i)e /ud"ment the same effectthat it would ha)e in the courts of that state

. Certification of a class action was within the /udicial proceedin"s of 1K6D- e)en when a ri"ht ise#clusi)ely federal3 within the e#clusi)e /urisdiction

of the federal courts does not ma9e 1K6Dinapplicale.c. Test8 (?arrese$

i. oes the law of the state "i)e preclusi)eeffects0

ii. oes statute "i)e any repeal to 1K6D ++C(rare$0

7. ettlement and Claim reclusion


38/55

a. efense of ?arria"e Act8i. 1K6D (c$- speciali*ed amendments- no ++C

to reco"ni*e same se# unionsii. Con"ress has plenary power to affect laws

of one state o)er another- ++C does not

"enerally apply to statutes, /ust /ud"ments.


39/55

!. pecial ettin"s and Recurrin" rolemsa. +ederal tate Conflicts

i. &rie octrine1. &rie R.R. ). Tomp9ins

a. Eo federal common law (not ound up in statute$ indi)ersity cases, apply sustanti)e law (statutes and precedent$ of state where court sits.

. oes not apply in federal 2uestion e#cept as"o)erned y statutes or Constitution

c. There is no federal "eneral common law- refers toall /ud"e made law- too mush of a dele"ation oflawma9in" authority to /ud"es

d. +ederal Common Law e#ists y /ud"es fillin" in the"aps8 i.e. herman Antitrust Act, Alien Tort ClaimsAct

e. Implications on Choice of Law8 Bla#son- federalcourt sittin" in di)ersity does ha)e to apply choiceof law re"ime of the state where they are sittin".

. wift ). Tysona. Common law contract case. Rules of ecision Act-

federal court should apply law of state where nofederal law- did not apply to /ud"e made law

. %eld that federal courts sittin" in di)ersity need notapply the unwritten law of the state, can de)elopcommon law interpretation

c. isad)anta"esi. +orum hoppin"- iscriminate a"ainst

residents y non-residents1. critici*ed in lac9 and 5hite Ta#i

Ca ut stare decisis was powerfulwhen dealin" with statutoryinterpretation (RA$

ii. Lac9 of uniformity in the common law-1. tried to create a center of "ra)ity in

federal common law- did not wor9.. differences in law e)en within the

same state.iii. ecision was unconstitutional

1. Con"ress nor federal courts had power to declare the law for thestates. >eneral law ma9in" authorityrests with the states unless there is ane#press "rant of le"islati)e authority

6. Is there a federalism issue0


40/55

a. +ederal Courts ha)e no inherent lawma9in" powerunless authori*ed y Con"ress or Courts

. i)ersity Clause does not empower Con"ress toma9e sustanti)e law or dele"ate power to federalcourts.

c. Is &rie a limitation on "eneral federal power0%istorical Interpretation- Rise of realism, politicalchec9 on states ri"hts3 federal power.

7. >uaranty Trust ). For9 a. For9 sued >uaranty Trust for self-interest- suit

would ha)e een arred y OL ut federal courtallowed suit, C re)ersed

. In e2uity, federal court must use OL of state whereit sits

c. Outcome eterminati)e Test- If outcome wouldchan"e if use federal law then &rie then use state

law.i. no lon"er a sustance3 procedure distinctionii. this was too road- isn@t e)erythin" outcome

determinati)ed. +ederal court in di)ersity is only another court of

the state, ut this was unwor9ale, ma9es no sensethat federal court must learn sorts of laws- one for federal 0 and one for di)ersity.


41/55

d. Rules &nalin" Act8 Accords special protection to+RC- dele"ates power to up. Ct. to enact rules of procedure, forms of process, writs, pleadin"s andmotions for federal district courts- therefore statelaw must yield.

e. Is +RC )alid0 (If there is a clash for federal law toapply, it must eU$i. Is it )alid under R&A0

ii. Is it constitutional, could it e case asar"ualy procedural0

K. iach ). 5ilson8a. Test for eterminin" +RC )alidity- A rule is )alid

under R&A if a rule really re"ulates procedure- the /udicial process for enforcin" ri"hts and dutiesreco"ni*ed y sustanti)e law and for /ustlyadministerin" remedy and redress for disre"ard or

/ustification. . R&A must not arid"e, enlar"e, or modify anysustanti)e ri"ht

D. Test8a. tat Law and +RC

i. !alid under R&A0 If yes, then no &rieanalysis

ii. If tate and +ederal law- &rie AnalysisH. 5al9er ). Armco teel

a. In/ury in D3K


42/55

c. 4sed yrd alancin" test of counter)eilin" federal policies- here, does not completely displace /urytherefore interest alancin" leadin" to compromise.

i. This is a procedural law with a sustanti)eo/ecti)e

d. Amend. !II- ri"ht to trial y /ury preser)ed, no factshall e re-e#amined in any court- :shoc9 theconscience; standard

i. :hoc9 the Conscience; std at trial le)elii. Ause of discretion std of appellate court

e. calia@s issent8i. Amend. !II would not permit appellate

re)iew procedural ruleii. This is not an &rie test ecause of

counter)eilin" federal interests and +ed.Rule should apply

iii. This case contradicts itself, it is not a cap ondama"es (sustanti)e$ /ust on re)iew1. emte9 ). Loc9heed ?artin

a. ued Loc9heed in state court, mo)ed to federalcourt for di)ersity, dismissed on merits with pre/udice on state OL

. then sues in ? state court- ar"ues that claimis precluded 3c of pre)ious action

c. Eo lon"er true that all /ud"ments on their merits areentitled claim preclusi)e effects

d. +ederal common law "o)erns the claim preclusi)eeffect of a dismissal y a federal court sittin" indi)ersity- no uniform federal rule- must adopt lawthat would e applied y state courts in the state inwhich the federal court sits.

i. ?ust e no counter)eilin" federal interestii. +ederal Courts3 tate Law

1. Bla#on ). enator &lectricala. enator- EF, B- & corp with a contract made in

EF- sued in & district courts to enforce thecontract

. & dist. Ct. applied EF sustanti)e law (1st R$ -re)ersed y supreme court

c. Cannot apply federal common law- federal districtcourt sittin" in di)ersity must apply law of the statewhere it sits- treat state choice of law 2uestions li9estate sustanti)e law 2uestions.

i. 4niform administeraility of the laws- thereis no federal choice of law re"ime


43/55

ii. re)ents forum shoppin"- ut federal courtsin different states are not uniform, couldencoura"e to rin" suit in certain places.

. Idea of +ederal Common law for Conflicts8a. A)oids ren)oi

. 4niformity- in)ol)ement of federal lawc. isinterested forum- not o)erly ound up with parochial rules

6. !an usen ). arrac9- rolems with Bla#ona. see9s transfer to another court and transferee

court must apply the state law that would ha)e eenapplied if there is no chan"e of )enue

. ame rule applies if transfer case (+erens ). 'ohneere$

iii. +ederal Law in tate Courts1. Testa ). Batt

a.


44/55

a. 'urisdiction to proscrie3 Le"islati)e 'urisdiction8Authority of state to ma9e its sustanti)e lawsapplicale to conduct relationships or status.

. 4.. ). Funisi. !iolation of hosta"e ta9in" act, estruction

of Aircraft Act- certain people on plane werefrom 4..ii. was ne)er in 4.. territory

iii. Territorial ases for /urisdiction o)er e#tra-territorial crimes under International Law8

1. territoriality8 where the offense wascommitted

• u/ecti)e- conduct occurs in

the territory

• O/ecti)e- effects felt within

a territory

. Eational- nationality of the actor-apply laws where)er in the worldyou may e

• Is there /urisdiction to

enforce0

• Conflict etween the states

6. rotecti)e- /urisdiction ased onin/ury to national interest

• Earrow construction-

offenses a"ainst secretary ofstate, inte"rity of "o).

functions, (i.e. counterfeitin",espiona"e, passport fraud$

7. 4ni)ersal8 'urisdiction when physical custody of thatcommitted offenses, impacts entireworld, dan"erous to world order


45/55

• Nualified application to

serious and uni)ersallycondemned crimes, whichwill not raise the specter ofunlimited and une#pected

criminal liaility=. pansion eyond Territoriality8

• Alcoa-

i. Intent- actor intendedto harm 4..

ii. actual &ffects3 not deminimis

i). Funis was prosecuted under uni)ersal and passi)e personal

1. 4ni)ersal- Acts were heinous-)iolations of con)entions that

denounce destruction of airplanes,hi/ac9in"

. assi)e personality principle-Americans aroad fli"ht- nottar"eted ecause of 4.. citi*enship

6. Could this lead to infinite criminalliaility for .. Citi*ens aroad0

c. ases of 'urisdiction to prescrie -7i. 1. 'urisdiction to prescrie law8

1. conduct within territory. person3 interests within territory

6. Conduct within territory that has oris intended to ha)e sustantial effectswithin territory

ii. Eationality of the Actor- outside or outsideof territory

iii. ecurity of the state (protecti)e principle$ or limited class of other state interests(uni)ersality0 assi)e personality0$

d. 77- 4ni)ersality rinciple- Certain offensesreco"ni*ed y international community of uni)ersalconcern (i.e. pri)acy, state trade, hi/ac9in", war

crimes etc$- e)en where none of the elements of7 are presente. 76

i. &)en if 7 applies, no /urisdiction ife#ercise of such /urisdiction is unreasonale

ii. ?ethods to define unreasonaleness1. lin9 of acti)ity of territory to

re"ulatory state


46/55

. connection6. Character of acti)ity to e re"ulated

important to re"ulatory state7. /ustified e#pectation


47/55

inference ut this is too road of a reachemployers employin" 4.. nationals aroad

). Con"ress acted y applyin" lawe#traterritorially with statutory lan"ua"e

i. teele ). ullo)a 5atch- Lanham Act- roader

definition of commerce clear enou"h to re"ulatee#traterritorial application. /. ?oderation in traterritorial Application of 4..

Law- direct conflict etween 4.. and +orei"n lawi. Timerland-

1. 4.. law is not e#tended aroad-'urisdictional rule of reason, efore76@s factors to calculate which lawis applied,

. Ee)er specifically o)erruled- maye76 is currently est approach

•

de"ree of conflict etween4.. traditions and forei"nlaw or policy8

• Eationality or alle"iance of

parties, 3 Connections

• %ow would enforcement

achie)e compliance- courtsdo not want to issue lawsthey don@t want to enforce

• &ffects on 4.. and

elsewhere, compared to those

effects elsewhere• Is there a purpose to harm

4.. commerce (Alcoa test$

• Relati)e Importance to

)iolation within 4.. ).conduct aroad

6. +orseeaility of affects9. O)ercomin" resumtion- Laurit*en, Romero-

olicy choice y Con"ress to enact le"islation. Antitrust and traterritoriality

a. %artford Ins .) CA

i. Conspiracy y insurers and reinsurers,forei"n and domestic, )iolation of hermanAntitrust Act- ARA?CO does not apply toantitrust actions

ii. +orei"n Insurers- althou"h acts were lawfulin ritain, they were in )iolation of hermanAntitrust Act


48/55

iii. Comity does not apply ecause there is atrue conflict, there are sustantial affects inthe 4..- Alcoa test

i). +or Comity81. Is there a true conflict- i.e

proscription in 4.. ). re2uirement in4B- here, person can suscrie to oth laws

. rolems8

• ulic policy e#ception- most

deference to law that is mostdifferent

• on@t want to step on toes of

forei"n "o)ernments

• A"reements etween nations

may handle conflicts instead

of courts). calia@s issent8

1. Cuts a"ainst application of 4.. law-state law o)errides federal law ininsurance minimi*es 4.. interest inre"ulatin" conflict. 5or9sthrou"h76 factors.

. Charmin" etsy rinciple8 construedomestic statutes in li"ht ofcustomary international law3 stds-ne)er should e construed to )iolate

law of notions if anotherconstruction e#ists- can eo)erridden y Con"ress

• +oley ros- /urisdictional

• C- sustanti)e law

6. traterritorial Reach of the Constitutiona. Reid ). Co)ert-

i. 4niform Code of ?ilitary 'ustice allowedwi)es of ser)icemen to e court martialedaroad for crimes committed on ase

ii. see9s declaratory /ud"ment that wife is

depri)ed of trial y /uryiii. An e#ecuti)e order or treaty cannot "et out

of constitutional re2uirements- Con"ress andresident could not pro)ide for court maritalaroad, could not )iolate free of constitution

i). Cannot depri)e 4.. citi*en of Constitutione)en if in forei"n land, e#tra-territorialeffects.


49/55

. 4.. ). !erdu"o-4r2uide*i. Citi*en and resident of ?M searched y 4

"o)ernment without a warrant- this is OB ii. There is no e#traterritorial application of the

7th Amend.- e#tended only to :the people;

(e)en thou"h <th

and =th

trial related ri"hts$1. rotects 4.. people from aritraryactions of their own "o)ernment

. class of persons with nationalcommunity may not ha)e to e aciti*en ut at least purposefula)ailment of 4.. laws (not /ust prosecution$

6. Insular cases- Constitution does notapply in unincorporated territory

7. aliens not entitled to


50/55

i. Art. 17- Ren)oi- a"ainst acceptin" reference ac9 e#cept when specified, i.e. personallaw

ii. Art. 1K- ulic olicy ception- must ecompatile with wiss pulic policy, more

fundamentaliii. Art. 11=- characteri*ation chosen y the parties

i). Art. 11K- li9e most si"nificant relationshiptest

). Torts- assumption of interest analysis- wantto offer determinati)e rule- more open endedand escape de)ices- more narrow thenAmerican conflicts law

. 5. ). ?s. 5-a. i)orce in wiss forum with 4.. contacts that

mo)ed 11 times to < different countries in 1= years. . Rule8 Art. =1- wiss law applicale when spouseis domiciled in wit*erland, or spouse isdomiciled for one year, if other common nationalitythat law should apply.

c. If common forei"n nationality wiss law shouldapply if forei"n connection is attenuated or sli"ht or if "reater connection to wiss law- here wiss lawapplied (si"nificant to ?R test$

6. Importance of Rules and ?ethods of Analysisiii. Act of tate octrine

1. Courts will refrain from /ud"in" acts of a forei"n"o)ernment within their own territory

i. Territoriality8 e#traterritorial effects to aforei"n state action

ii. iplomacy- to forei"n relations to comprisewith "o)ernments that don@t e)en e#ist

iii. Clear Law- if clear local law prohiits theact the doctrine does not apply

i). Con"ressional o)erride of the octrine-%ic9enlopper amendment

). ecuti)e su""estion- ernstein letter )i. Eot solely limited to "o)ernment parties,

. Astention- this is a ne"ati)e doctrine. If doctrineapplies, courts do not ad/udicate- presumes )alidityof forei"n act

c. ?ust respect forei"n law- opposite of pulic policye#ception


51/55

d. octrine at 5ar with itself- federal common lawscreated y /ud"es- /ud"es can also e hostile tothem.

. 4nderhill ). %ernande*-a. Act of tate octrine in its whole- actions y

military commanders durin" a re)olution. . Redress of "rie)ances y reason of such acts must e otained of y so)erei"n powers as etweenthemsel)es, i.e. e#ecuti)e action.

c. &)ery state is ound to respect the independence ofe)ery other so)erei"n state and the courts of onecountry will not sit in /ud"ment of he acts of the"o)ernment of another country within its ownterritory.

6. anco Eacional de Cua ). aatinoa. Cua nationali*ed property of 4.. citi*ens in Cua.

ayment was made to the company that had its property nationali*ed rather then to anco national. . Cua in)ol)ed act of state doctrine- domestic courts

must presume )alidity of forei"n acts- applies whenforei"n country in its own territory, country must ereco"ni*ed a time of suit in asence of treaty.

c. Constitutional underpinnin"s3 separation of powers-do not want courts interferin" in forei"n relations.

d. The 'udicial ranch will not e#amine the )alidity ofa ta9in" of property within its own territory y aforei"n so)erei"n, e#tant and reco"ni*ed y thiscountry at the time of suit, in the asence of a treatyor unami"uous a"reement e)en if international awis )iolated.

e. Tri""er to Act of tate octrine8 official act on ehalf of a forei"n "o)ernment, lawful so)erei"ntyratified y state itself.

i. Can e imposed on pri)ate parties if there isa law on the oo9s

ii. This is not a prophylactic rule- alancin"test leads to pic9 a forei"n law where thereis a dis"ression.

f. Con"ress can o)erride act of state doctrine(%ic9enlopper amendment$

". Choice of law8i. trict territoriality

ii. O)erride of pulic policy e#ceptioniii. Connect to international choice of law- hard

to reconcile act of state doctrine with 76(more le"islai)e$


52/55

7. ernstein letters- ecuti)e ranch su""estions to o)errideact of state doctrine ecause contrary to pulic policy- it isa si"nificant not dispositi)e factor in the analysis

uyota. EF citi*ens were sued y a +rench firm3

li2uidator (>uyot$ in +rance- /ud"ment a"ainst%ilton

. >uyot sued to enforce in EF- upreme Court wouldnot allow

c. Comity of Eations- one court "i)es deference toforei"n decision, not an oli"ation- here since thereis no reciprocity ecause +rench courts would notenforce 4.. /ud"ment in +rance, therefore re-liti"ation of the merits.

i. Induce chan"e of eha)ior aroadii. +or"oes emphasis on finality to discoura"e

forum shoppin".d. This is no lon"er controllin" in ?ost states- may

apply if there is some other reason not to enforcee. Re2uirements to reco"ni*e /ud"ment (dicta$8

preconditions to acceptance of comity8i. +ull and fair trial

ii. Court of competent /urisdictioniii. Trial conducted throu"h re"ular proceedin"si). Ade2uate notice to defendant (&n"lish$). Impartial /ustice etween citi*ens and aliens

)i. Eo pre/udice in court or system of laws1. difference etween +rench and 4..

system will e a due process)iolation ut will not loc9enforcement of +rench procedure


53/55

. less demandin" std then internationalmeasure of due process

)ii. Eo fraud in procurin" /ud"ment)iii. Eo other special reason for denyin" comity.

. 4niform +orei"n ?oney 'ud"ment Reco"nition Acts

a. ?andatory efenses ). discretionary defenses-forei"n /ud"ment is entitled to ++C if certainre2uirements

i. +orei"n /ud"ment rendered under a systemwhich did not pro)ide impartial triunals o procedures compatile with due processre2uirements

ii. Eo personal /urisdiction o)er the iii. Eo su/ect matter /urisdiction

. iscretionary +actors8i. Eo notice within sufficient time

ii. 'ud"ment otained y fraudiii. !iolation of pulic policyi). 'ud"ment conflicts with another final and

conclusi)e /ud"ment). !iolation of a"reement etween parties

)i. Incon)enient forum6. emporte#-

a. ritish co sued hiladelphia co in 4B- hila comade special appearance to challen"e ' thenattempted to withdraw, /urisdiction sustained and /ud"ment entered

. Aandons reciprocity re2uirement of %ilton- can eenforced in 4

c. Re2. of full and fair trial is malleale7. Impact of &rie on %ilton8

a. Includes state rule of reco"nition of forei"n /ud"ment- can estalish own rules

. %ilton aandons uniformity considerationsc. tate to state /ud"ment unless federal le"islation.


54/55

ulic olicy- Is it too elastic to e meanin"ful0

• Fahoo ). La Li"ue Contre Le Racisme

o In a 'ud"ment ased on a different type of speech. %ow would we deal

with an interconnected world with free speech issues0o +rench nonprofits opposed to nonprofits, sued Fahoo ecause Auction

cite allows Ea*i propa"anda.o Ori"inally +rench Court allowed either +rench citi*ens to e denied access

to this material, a warnin" of rea9in" the law, and a penalty.o Fahoo said they could restrict postin" on Fahoo +rench cite, ut not full

Fahoo.com.o ?odified order- Fahoo could ta9e some of the items off.

o Fahoo sued for declaratory /ud"ment that order is not enforceale. To "et

rid of all material would )iolate Fahoo@s first amendment ri"hts.o Court found that yahoo@s first amendment ri"ht outwei"hed comity and

this could not e enforced in the 4.. ri)ile"e of +irst Amendment whenit comes to ulic olicy.

o There is no less restricti)e alternati)eo ulic olicy defense has een limited in ++C cases- no e2ui)alent (a9er

). >?$- 4nder 4niform Act should upreme Court interpretations also e rou"ht in.

o oes a ulic olicy ha)e to e Constitutional to derail a forei"n

/ud"ment0 5hat else can suffice0 ?ust undermine pulic interest orconfidence.

>amlin" det- proaly not

5hat aout collusi)e familial issues0 ?ay e o)ercome ecause of

the family unit

Antitrust issue- herman Act is less restricti)e- may tri""er .ole#ception in tune with herman Acto 5hy is this +rench /ud"ment not considered a forei"n act of state0

&)en on its own terms this is a court /ud"ment and act of state

should not apply Territorial authority cannot wor9 in a "loal economy. 5here is

the content e#actly0

o Tachiona ). ?u"ae

o Contrasts mechanical choice of law of Carroll ). AL

o !ictims of %uman Ri"hts ause in Jimawe- campai"n for )iolence,

sued ma/or political party.o Case dismissed a"ainst ?u"ae, "i)es asolute immunity.

o ued under Alien Tort Claims Act for Torts, )iolated international %uman

Ri"hts normso Choice of Law prolem- all acts occurred in Jimawe, all parties in

Jimawe.o ?ust insure that case will e treated the same way where)er it is rou"ht8

a)oidance of forum shoppin".


55/55

o ulic olicy rhetoric, not final /ud"ment- protect human ri"hts law- court

concerned with o)erridin" federal policy- why is there not a federaldeference.

o This is an act of state y ?u"ae- ut does not wor9 here ecause of a

clear )iolation of law y treaty, not lawful under Jimawean law.

o epeca"e- issues are ro9en up and different laws are applied to eachissue- result orientation :with a )en"ance;

o 4sin" weird sources of law- i.e. law of >uatemala for silin" law

Conflicts of Laws Outline - Uncategorized 2

Documents

Transcript of Conflicts of Laws Outline - Uncategorized 2