Conflicts of Laws Outline - Uncategorized

8/13/2019 Conflicts of Laws Outline - Uncategorized

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Conflicts of Laws FriedentFall 20

CHOICE OF LAW: THE BASIC MODEL

I. Traditional Approach to Choice of LawA. Three ha!e! of M"lti!tate Di!p"te!

1. Jurisdiction (where can the litigation be initiated?)2. Choice of Law (which law will the court al!?)

". #ecognition and $nforce%ent of Judg%ents (where can the resulting &udg%ent be enforceda. Full faith and credit considerationsb. 'tate statutes %a! eist that gie full faith and credit to international &udg%entsc. Judg%ent will not be enforced if the rendering court lac*ed &urisdiction

B. Traditional Theor#: $"ri!diction%Selection &"le!

1. 'eneral &"le!a. Foru% will al! its own law as default and wheneer ossibleb. +he eistence of a state statute coering the sub&ect %atter will usuall! be decisiec. Co%it! (Justice 'tor!)

i. 'o%ewhere between a %ere courtes! and legal dut! deried fro% tacit conseof nations based on %utual forbearance and enlightened self,interest

ii. -e! aio%s

1) +he laws of each state hae force within the territor! but not be!on/elevates territorialism into the main operating principle2) +hese laws bind all those who are found within the territor! whethe

er%anentl! or te%oraril! /elevates territorialism into the mainoperating principle

") ut of co%it! foreign laws %a! be alied so that rights acuiredunder the% can retain their force (roided the! do not re&udice theforu% state3s owers or rights) /attempts to explain why the forumstate will apply the law of another forum state; does not address whit will do so

2. (e!ted &i)ht! Theor#(Joseh 4eale)a. Co%it! 5rinciles were re&ected b! 4eale in faor of the $nglish doctrine of 6ested

#ightsb. ne set of rules that would deter%ine in an! case what law controlled regardless ofwhere suit was brought

c. Lex loci delicti7 al! the law of the lace where the last bad act occurredd. 'trong territorial aroach7 rigidl! al! the law of the lace where the last eents

occurrede. dantages

i. rguabl! eas! to al! (but so%eti%es the 9lace of the tort: is difficult todeter%ine)

ii. +he lex lociis the onl! geograhic factor co%%on to both arties to the suit (this was not true in Carroll)

iii. ;eutral does not faor laintiffs or defendants whereas al!ing the law ofthe foru% would faor laintiffs and encourage foru% shoing

i. 5redictable suits will be resoled the sa%e wa! regardless of where thelitigation is brought (predictability and uniformity!)

f.


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a. &"le:the ca"!e of action ari!e! "nder the law! of the !tate where the la!t actocc"rred. laba%a >reat 'outhern #.#. Co. . Carroll(la. 182) (5 e%lo!ee ane%lo!er were residents of laba%a@ < incororated in laba%a@ 5 in&ured inAississii but the cause of the in&ur! was a fault! train insection that occurred in

laba%a@ court held because injury occurred in Mississippi, rights vested there andMississippi law applied@ Aississii fellow serant rule barred recoer!)

i. #e%e%ber7 without in&ur! there is no tort (elaining wh! 9bad act: rule shou

not al!)ii. +he results see% unfair

1) laba%a could change its wor*ers co%ensation law to eressl!al! to laba%a e%lo!ees regardless of location of in&ur!

2) lternatie factors7 do%icile state interests lace of bad conductbetter law foru% law

iii. #eflects contrar! goals of conflicts71) licable law should be selectedfairlyeen if the ulti%ate alicat

see%s un&ust2) lication of the selected law should attain material or substantive

justicerather than focusing on fair selectionb. +erritorialit! and 6ested #ights7 +he First #estate%ent (1"8)

i. , - ;o state can %a*e a law which b! its own force is oeratie in anotherstate.

ii. , // +he lace of the wrong is in the state where the last eent necessar!%a*e an actor liable for an alleged tort ta*es lace.

iii. , /0 +he law of the lace of the wrong deter%ines whether a erson hassustained a legal in&ur!.

i. , 01 Bf a cause of action in tort is recognied in the lace of the wrong acause of action will be recognied in other states. Bf no cause of action iscreated in the lace of the wrong no recoer! in tort can be had in an! otherstate.

. , 02 +he law of the lace of the wrong deter%ines whether a %aster is liain tort to a serant for a wrong caused b! a fellow serant.

i. E3CETIO4:if there is a standard of care in the state where !ou act and !oact within that standard of care !ou should not be sub&ect to liabilit! for in&ur!that occurred elsewhere as a result of !our conduct

c. ther lace of in&ur! rulesi. Drongful death7 last act is where the fatal blow was delieredii. Libel case7 last act is where the libel was co%%unication (but action %ust be

brought in one state onl!)E. lace of Contractin) *Territorial Approach+

a. &"le: the 5alidit# of a contract i! to 6e deter7ined 6# the law of the !tate inwhich the contract wa! 7ade8 if it i! 5alid there then it i! 5alid e5er#where andan action on the contract will 6e !"!tained e5en in the co"rt! of a !tate who!elaw doe! not per7it !"ch a contract. Ailli*en . 5ratt(Aass. 188) (5 in Aaine so

goods on credit to < in Aass@


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i. ;ote7 this rule does not reall! sole the roble% because the foru%,lawdeter%ination of where the contract was %ade essentiall! swallows u thesecond inuir! of whose substantie law alies

ii. #estate%ent also includes rules that describe when a contract is %ade uonaccetance (accetance where %ailed accetance where so*en into thetelehone etc.)

G. Sit"! of ropert#a. B%%oable roert!

i. Lex Rei Sitae: appl# the law of the !tate where the i77o5a6le i! locatedii. &e!tate7ent re"ire! application of the ;whole law< of the place where

the i77o5a6le i! !it"ated1) , =>0 Dhether a thing is %oeable or i%%oable is deter%ined

according to the law of the situs of the thing2) B%%oable roert! usuall! includes the land and buildings attache

thereto") +his is one of the few areas of law where renvoialies al%ost

uniersall! (courts loo* to the 9whole law: of the state where thei%%oeable is located)

iii. 'itus state has eclusie de &ure and de fact ower oer land situated within borders (e.g. le!ing roert! taes)

i. Certaint#9 con5enience9 and clarit# of titleare uniersall! shared ob&ectieof the law of roert! and cannot be acco%lished if land in one state is sub&to dierse and otentiall! conflicting laws (assure integrit! of the recordings!ste% and unifor%it! of result). Bn re 4arrie3s $state(Bowa 1E) (Bllinoiswo%an eecuted a will deising land in Bowa to a church@ before she died shwrote 9oid: all oer the will@ Bllinois law would hae held the will oided@ Iowaheld the will was not voided because witnesses were required for revocation )

1) Full faith and credit does notal! to &udg%ents of robate as toi%%oable real roert!

2) 'ule%entar! robate is reuired to address land located in anothstate

. +he situs state has the strongest interestin regulating land situated within itsborder

i. 'itus rule is eas! to al! and hard to %aniulate because whether a thing isi%%oeable and where it is located are usuall! clear

b. Aoeable roert!i. &"le for inter 5i5o! propert#: appl# the law of the !tate where the )ood!

are located at the ti7e the action occ"rred *for7 of !it"! r"le+1) 4ut this rule does not lend itself to co%le transactions2) +wo,ste inuir! reuired7

Dhat is the nature of the transaction? Dhere is the situs of the transaction?

ii. &"le for inte!tate and te!tate propert#: appl# inte!tate law of the !tate o

decedent?! do7icile at ti7e of death1) Bncludes inest%ents and ban* accounts2) ote domicile rule consolidates probate and gets full faith and cred

in all other states

H. Do7icilea. &"le: !tate of do7icile at death i! the law that control! pro6ateb.


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side and ta*e care of land@ his wife got sic* and he cared for her in the fa%il!%ansion on the D6 side but continued to care for 5 house and liestoc*@court held that decedent changed his domicile and "# law controlled probate

c. B%ortance of do%icile in #estate%enti. Aarried wo%en used to be rohibited fro% haing searate do%icile fro%

husbandsii. n indiiduals can alwa!s be sued at his or her do%icile

iii.


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2) 4ut so%eti%es characteriation can be seen as %aniulation b! thecourt to get a referred result on the %erits. Le! .


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. d%issibilit! of eidencei. ccess to the courtsii. Statute of frauds. Aarie . >arrison(; 188") (5 sued in ; for breach of

oral contract %ade in Aissouri@ < argued that statute of frauds alied and thcontract was unenforceable@ ordinaril! Aissouri law would al! to a contracentered into there@ Aissouri law would hae inalidated the contract understatute of frauds@ court held that Missouri statute of frauds was procedural onand did not apply to suit in & court, and & substantive law applied to void contract on substantive terms)

1) 'tatute of frauds is rocedural because it is an eidentiar! rule $nsures that arties are aware the! are entering into a contrac $nsures clarit! of the ter%s of the contract ral contracts are too difficult to roe

iii. Statutes of limitations1) 'tatute of li%itations seres both substantie and rocedural uros

5rocedural7 rotects courts with li%ited resources fro% staleclai%s

'ubstantie7 rotects defendants2) $cetions to statute of li%itations as rocedural

Cause of action and substance are so intertwined that the statuof li%itations is substantie (usuall! when a cause of action iscreated b! statute) (cf. when a cause of action in a statute isgoerned b! a generalstatute of li%itations for torts)

4orrowing statutes7 statutes that dictated that statute ofli%itations of &urisdictions fro% which substantie law wasborrowed would al! (usuall! adoted shorter statute ofli%itations between foru% and other &urisdiction fro% whichsubstantie law was borrowed)

") 4ournais . tlantic Aariti%e Co. Ltd. (5 brought suit under 5ana%Labor Code een though the statute of li%itations in that law hadalread! assed@ 5 relied on longer statute of li%itations in a federal

statute@ court held statute of limitations was procedural so longerfederal statute of limitations)

E) -eeton . Iustler Aagaine Bnc. (;I 188) (; laintiff filed actionfor libel and slander against IKC defendant@ ;I was the onl! stawhere the action wasn3t ti%e,barred@ court applied its own statute oflimitations because it was considered procedural and ' has noborrowing statute)

i.Limits on recovery. -ilberg . ;ortheast irlines Bnc.(; 1H1) (; %anbought lane tic*et in ;@ lane crashed in Aass.@ Aass. law would al! to substantie clai% because it was the lace of the tort but Aass. law li%itedrecoer! to 1G000@ court applied & law to recovery issue (no limit onrecovery) based on (a) public policy, and (b) holding that remedial laws are

procedural)d. Co77on proced"re 5. !"6!tance i!!"e!

i. Cas on da%agesii. 'uriorshi of clai%s. >rant . Aculiffe(Cal. 1G") (5s and


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rotect innocent widows and children of < who is a C resident here@ cf.wrongful death statutes which create a cause of action to rotect the widowsand children of 5)

iii. 'tatute of fraudsi. 'tatute of li%itations (usuall! rocedural). #ight to &ur! trial

1) 5rocedural? Bt is art of how the court oerates@ eole choose for

based on aailabilit! of a &ur!.2) 'ubstantie? Bt is a constitutional right but is it %erel! a rocedura

right? +he 'eenth %end%ent does not al! to the states robabecause it is considered rocedural.

i. Nuestions of law ersus uestions of fact (usuall! rocedural)1) $.g. in %ost states the uestion of whether a contract eists is a

uestion of fact for the &ur! but in so%e states in the absence ofcredibilit! issues it is a legal uestion for the &udge.

ii. #ules of eidenceiii. 4urden of roof

1) Bf a law is adoted for conflicts uroses should the standard of robe adoted as well?

i.


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1) Bf the trans%ission is to the 9whole law: of 'tate C (loo* to 'tate 43sconflicts law) continue to loo* to the conflicts law of the state(s)referred until there is a reference to substantie law.

2) Bf the trans%ission is to the substantie law of 'tate C then 'tate Claw alies and the %atter ends.

c. Dhen does renoi al!?i. Foru% decides when to al! renoi

ii. Fir!t &e!tate7ent:renoi onl! alies to1) B%%oable roert! (al! 9whole law: of situs).2) er%an law inalidated laintiff3

contract@ court held that it was not against public policy to allow the defensebased on a discriminatory law)

1) +here is a funda%ental difference between clai%ing a ublic olic!ecetion to rohibit a lawsuit (Aert) and clai%ing a ublic olic!ecetion to rohibit a art! fro% defending a lawsuit (Ioler)

2) +here is no har% in finding ublic olic! reasoning for ecluding aclai% in that foru%@ the laintiff can sue elsewhere

") 4ut ublic olic! cannot fairl! reclude a defense because thedefendant will lose on that basis

b. 5enal Laws

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i. State! will not enforce the penal law! of other !tate!1) +here is a secific tie to the &urisdiction2) Cri%inal laws are difficult to enforce eseciall! if there was a enal

&udg%ent in another state") Cri%inal law is tried onl! in the &urisdiction where the cri%e was

co%%ittedii. ther indications that a law %a! be enal (and thus won3t be alied in anoth

state)71) +he goern%ent sues to indicate a ublic right eseciall! when th

re%ed! is a enalt!2) +he goern%ent benefits in so%e wa! (enalt! or fine) een if not

brining the suit") 5riate suit brought for the ublic good where the laintiff *ees so%

of the collected enalt! (e.g. citien suit statutor! roisionsrewarding riate citiens for bring suit in eniron%ental cleanucases)

E) 5unitie da%ages are notenaliii. &"le: a forei)n !tat"e that i! penal in !o7e !en!e i! not nece!!aril# pen

for all p"rpo!e!. Louc*s . 'tandard il Co. of ;(; 118) (to be enal

law %ust not grant rearation to one aggrieed but %ust instead indicateublic &ustice@ court held that Mass% law was classified as penal but should nobe considered such here because it was not against & public policy)

c. +a Lawsi. Traditional r"le wa! that !tate! will not enforce the re5en"e law! of othe

!tate!1) +here is reluctance to inuire into another s!ste%3s ta law2) state ris*s offending another &urisdiction b! refusing to al! the l

ii. l%ost all states hae since assed statutes for co%le%entar! recognition ota law

iii. S"pre7e Co"rt ha! !aid that one !tate cannot ref"!e to honor the"d)7ent of another !tate with re!pect to the collection of ta@e!

D. leadin) and ro5in) Forei)n Law1. &"le: the law of a forei)n co"ntr# i! a fact that 7"!t 6e pro5ed. Dalton . rab

%erican il Co.(2d Cir. 1GH) (r*ansas citien was hurt in car accident with ; drier in'audi rabia and sued in ;@ drier was an e%lo!ee of a


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2. 'tatutes for secific legal act (e.g. statutes %a*ing holograhic wills alid in other states ifis alid in the state it was %ade)

". =nifor% Co%%ercial Code (the law that the arties select controls)E. Borrowin) !tat"te!

a. lication of foreign law will %ean that the foru% borrows the foreign statute ofli%itations as well

b. 'o%e &urisdictions li%it the rule of borrowing to foreign statutes of li%itations that areshorterthan the foru% statute of li%itationsc. ther &urisdictions borrow the statute of li%itations of theplace where the tort occurr

G. +olling roisions (statute of li%itations is tolled when the defendant leaes the state)H. Contract!

a. &"le of part# a"tono7# *Second &e!tate7ent+i. Choice of law pro5i!ion! will control if the i!!"e i! one which the partie

co"ld ha5e re!ol5ed 6# an e@plicit pro5i!ion in their a)ree7ent directedthat i!!"e

ii. Choice of law roisions will control een if the issue is notone which thearties could hae resoled b! including the roision unless7

1) +he chosen state has no substantial relationshi to the arties or

transaction and there is no other reasonable basis for the choice or2) lication of the chosen law would be contrar! to a funda%entalolic! of a state which has %ateriall! great interest that the chosenstate

iii. bsent a contrar! intention the reference is to the local law of the state of thechosen law (no renoi)

i. Bn order for a choice of law roision to be alid (a) the arties %ust hae thecaacit! to choose the alicable law (b) the! %ust hae consented to thechoice (c) there %ust hae been a %eeting of the %inds and (d) it %ust habeen done in roer for%. The followin) law! may be usedto deter7ine5alidit#:

1) +he law of the foru%

2) +he law that would hae been alicable if the choice of law roisiwas not included") +he law chosen b! the arties

b. #ule of alidation (see 5art C)c. Traditional r"le that the applica6le law i! the law of the !tate where the contrac

wa! e@ec"ted i! a pre!"7pti5e r"le9 6"t can 6e o5erco7e.i. E@pre!! declaration that !o7e other law will appl#. 'iegel%an . Cunard

Dhite 'tar(choice of law roision contained in a stea%shi tic*et %ade thetic*et a contract of adhesion)

1) Contractual ter%s cannot select law in order to eade the olic! ofrohibiting certain contractual ter%s (e.g. li%its on art! autono%!rules rotecting infant and inco%etent arties)

2) &e!tate7ent Second: Choice of law of the arties will be acceted within certain

limitationsas long as the arties are able to %a*e that choice ainclude it in the contract

4ut if the ter%s are those which arties usuall! cannot goernthe arties3 intent controls the alicable law with ecetions

0xceptions7a. Law chosen %ust hae a substantial relationshi to

arties to the transaction within a reasonable basis

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b. Chosen law will not goern if it is funda%entall! againsublic olic! of the law that would otherwise goern hachoice not been %ade

c. Chosen law will not goern if contract of adhesion areagainst the olic! of the foru%

d. #ule of 6alidation (arties cannot select controlling lawthat would inalidate the contract)

ii. The partie! intended the contract to 6e perfor7ed !o7ewhere el!e. 5ritchard . ;orton(Louisiana citien signed aeal bond in a Louisiana ciilcase in ;@ case lost on aeal@ citien3s insurers argued that the aeal bonwas inalid in ; for lac* of consideration and therefore he didn3t hae to a!court held Louisiana law applies because the parties intended for the contracto be performed in Louisiana where it was valid)

. ropert# D!att . Fulrath('anish coule hid assets in ; during 'anish Ciil Dar@ thsigned an agree%ent to let ; suriorshi law control the assets@ 'anish law would hae%ade the roert! &oin een after the death of one souse@ court held that & law appliedbecause & public policy asserted control over property within its jurisdiction@ dissent arguthat traditional rule of law of %arital do%icile should hae alied)

C. art# A"tono7# and the &"le of (alidation

1. Contract!a. &"le of (alidation:

i. artie! cannot !elect controllin) law that wo"ld in5alidate the contractii. +his rule oerrules art! autono%!

2. Inter (i5o! and Te!ta7entar# Tr"!t!a. &"le: in deter7inin) the law to control an inter 5i5o! tr"!t9 the do7icile of the

!ettlor i! not the a6!ol"te and controllin) con!ideration8 in!tead9 the e@pre!! oclearl# i7plied intent of the !ettlor !ho"ld control a6!ent an# !tron) for"7polic# to the contrar#. 'hannon . Bring +rust Co.(;J settlor established anirreocable inter ios trust in ; but directed that ;J law should control@ court affirmthat 1 law controlled)@ Iutchinson . #oss@ D!att . Fulrath

b. &"le: the traditional !it"! r"le doe! not control a te!ta7entar# tr"!t9 6"t ratherthe law of the place with an intere!t in the 7arital !tat"!. $state of Crichton(husband died in ; where he and his wife were %arried and do%iciled@ he left %osthis roert! in Louisiana to his children@ wife brought suit in L under co%%unit!roert! rules@ court held & law applied because it had the only interest as the mardomicile). $state of Clar*(court alied law of 6 as %arital do%icile een thoughestate eisted in ; ban* and will secified that ; law should al!)

i. 4ut see $state of #enard(wo%an who lied in ; for "0 !ears died do%icilein France@ court upheld her selection of & law to control the descent of herestate and depriving her son of his one2half share under 3rench law because(a) of her long & residence, and (b) her son was not a 3rench resident)

D. Intere!t Anal#!i!

1. Intere!t Anal#!i! Theor#a. Currie theoried that traditional rules though intended to create unifor%it! and

certaint! did not create results based on olic! statutor! urose logic or rationaleb. $.g. Ailli*en . 5ratt(court relied on traditional rule that the law of the lace where t

contract was %ade controlled@ therefore the contract was alid because it was enterinto in Aaine een though Aassachusetts law rohibited wies fro% contractingindeendentl! of their husbands)

i. De should instead ealuate the alicable law based on statutor! urose71) Aassachusetts3s rohibitie law was intended to rotect

Aassachusetts wo%en@ Aaine3s er%issie law was intended to ato Aaine wo%en

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2) 4ecause the wo%an here was fro% Aassachusetts Massachusettshad a strong interest in applying its law to this case

ii. +he lace of contracting rule is %eaningless co%ared to where the arties afro% and the interests of those &urisdictions

c. court faced with a clai% based on a set of facts should loo* at the law deter%ine turose interret the law and then deter%ine which law should al! out of %an!laws that %a! aear to be conflicting

i. Bntentionalis%7 what is the intent of the law?ii. +etualis%7 what is the scoe of the law according to its tet?iii. Aoral B%eratie7 what should the law %ean?

d. state3s interest is the roduct of7i. >oern%ent olic!@ andii. +he concurrent eistence of an aroriate relationshi between the state

haing the olic! and the transaction the arties or the litigation2. Intere!t Anal#!i! roce!!

a. l! the law of the foru% unless otherwise reuestedb. Bf foreign law is reuested the court should loo* to the olicies behind the resectie

laws and deter%ine whether one state or both hae an interest in al!ing their lawc. Bf onl! one state has an interest this is a false conflictand the law of the interested

state should al!d. Bf both states hae an interest this is a true conflict7

i. Balance the intere!t!: i! one !tate 7ore intere!tedii. If 6oth !tate! are e"all# intere!ted9 appl# for"7 law

1) +his encourages foru% shoing2) Bt will also create different results deending on where the case is

broughte. Bf neither state has an interest al! foru% law

". Identif#in) Fal!e Conflict!a. False Conflict: when two or 7ore !tate! are in5ol5ed in the di!p"te and onl# o

i! ;intere!ted< in ha5in) it! law appliedb. Conflicts within the sa%e &urisdiction

i. Chesne! . Aare* (ciil rights statute allows reailing laintiff to recoerattorne!3s fees and costs@ defendant %ade settle%ent offer under F#C5 H8@laintiff re&ected offer and won but his award was less favorablethan thesettle%ent offer@ defendant argued that F#C5 H8 controlled oer the ciil righstatute and laintiff was not entitled to recoer attorne!3s fees@ court held civirights statute controlled because it entails a substantive right)

ii. Aare* . Chesne! (sa%e case on aeal@ court held that 34$" 56 policy ofpromoting and encouraging settlements applies across the board, even in civrights cases@ laintiff 9lost: because the ulti%ate award was less faorable thathe settle%ent offer so he was not entitled to attorne!3s fees@ this resultdemonstrates reconciliation between the two conflicting rules so that it can beconsidered a false conflict-)

c. >uest statutesi. +oo*er . Loe (car accident in Aichigan@ car was drien b! ; defendant a

registered there@ one laintiff was fro% ; and the other fro% Aichigan@traditional tort rule lace of wrong would al! Aichigan3s guest statute tobar assengers fro% suing the drier for negligence)

1) Aichigan3s interest (guest statute)7 "urposeof Aichigan guest statute was to rotect insurance

co%anies fro% fraud

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4ut the car here was registered in ; and insured b! a ;co%an!@ the Aichigan statute was not intended to rotect ;insurers

2) ;ew or*3s interest (no guest statute)7 ; had a olic! notof rotecting insurance co%anies but of

allowing ; citiens to collect against negligent driers For the sa%e reason (no rotection for ; insurers) the Aichig

laintiff should also be able to recoer against the ; drier@residence of the plaintiff shouldn/t matter

") +his is a false conflict both states3 olicies would allow the laintiffto collect

E) ;ote7 Bf the guest statute was switched (sa%e facts but ; has theguest statute law) there wouldbe an actual conflictO

; would want to rotect its insurance co%anies (no recoer! Aichigan would want to rotect the Aichigan assenger in the

accident (recoer!) Currie sa!s forum lawwould al!O

d. Lo!!%allocation 5er!"! cond"ct%re)"latin) r"le!i. Conduct,regulating rules oerate territoriall! (rules are tied to the lace of

in&ur!)ii. Loss,allocating rules inole the relationshi of the art! (rules follow the

erson)iii. ;ew or* +heor! (lo!!%allocatin) r"le!). ;eu%ier . -uehner&"le!(;

12)71) Dhen a assenger and drier are fro% the sa%e state and the car i

insured there the law of that state will al! regardless of where theinjury occurred

2) Dhen the accident occurs in a state with a guest statute and the driis do%iciled there that state3s law should al! (no liabilit! under thlaw of the icti%3s state)

") Dhen the accident occurs in a state where the state er%its recoe

the guest %a! recoer and a defendant cannot assert his own stateguest statute as a defense (guest statutes are loss,allocating and thlaw of the do%icile alies when loss,allocating rules are at issue)

E) Dhen the guest and the drier are fro% different states the law of tstate where the accident occurred will al! unlessthe following isshown7


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") Court held that the ; conduct,regulating interest is wea+ in this cabecause the ri%ar! issue in this case is loss2allocation

E) +he court alied ;J law and dis%issed the suit@ a change in the lais u to the residents of ;J if the! don3t li*e the result

. &"le: if cond"ct%re)"latin) r"le! are at i!!"e9 the law of the "ri!dictionwhere the tort occ"rred will )enerall# appl#8 if lo!!%allocatin) r"le! are i!!"e9 other factor! 7"!t 6e con!idered incl"ded the do7icile*!+ of the

partie!. Coone! . sgood Aachiner! Bnc.(sgood sold ; %achine toAissouri co%an!@ co%an!3s e%lo!ee Coone! is in&ured@ Coone! suedsgood in ; and sgood sued e%lo!er for &oint and seeral liabilit!@Aissouri wor*er3s co% relieed e%lo!er of further liabilit! but ; law %ade%lo!er liable for eer! art of e%lo!ee3s recoer!)

1) Aissouri3s interest7 5rotect indiiduals fro% in&ur! on the &ob whether or not the!

could collect in an ordinar! tort action (conduct,regulating rule?2) ;ew or*3s interest7

5rotect defendants b! reuiring other liable indiiduals tocontribute (loss,allocation rule)

") Co%eting olicies7 5olic! of recoer! b! in&ured e%lo!ee ersus olic! of

contribution Currie would sa! there is no conflict because the ; olic! of

contribution alies to indiiduals who would be initiall! liableand sgood would not hae been initiall! liable in this case

E) ;eu%eier 'econd #ule7 where the local law of each litigant3s do%icfaors that art! and the action is ending in one of those

&urisdictions the lace of the in&ur! goerns Court held that Aissouri law alies and sgood cannot see*

contribution fro% the e%lo!er because the e%lo!er has alreacontributed (; alies 'econd #estate%ent %ost significancontacts)

+his resolution co%orts with the arties3 reasonableexpectations

G) ;ote7 3riedenthal thin+s there should have been a setoff from whatthe plaintiff could collect from 7sgood

E. The ;npro5ided%For< Ca!e *no law applie!+a. &"le: where no !tate ha! an intere!t in the law to 6e applied9 for"7 law will

appl#. $rwin . +ho%as(Dashington husband is in&ured in Dashington b! regondrier@ wife wanted to sue for loss of consortiu%@ Dashington law onl! allowed ahusband to sue for loss of consortiu%@ regon allowed either souse to sue@ undertraditional rule Dashington law lace of wrong would al!)

i. Dashington3s interest71) Dashington has no interestin rotecting an regon defendant fro%

being liable to a wo%an for loss of consortiu%ii. regon3s interest7

1) regon has no interestin allowing a Dashington wo%an to collectfro% an regon defendant

iii. Dashington wife would not be able to collect in Dashington because she wohae no right to collect on. regon does not roide a right to relief eithersince regon law onl! alies to regon wies.

i. +herefore there is no right to relief under either state lawand the case isdismissed

b. I!othetical

1E


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i. ntario laintiff in&ured in ntario while in a car with a ; drierii. ntario has a guest statute rohibiting laintiff fro% suing@ ; does not hae

guest statuteiii. +his is notan unroided,for case@ this is a false conflict

1) ntario has no interest in rotecting a ; drier2) ; has no interest in allowing an ntario laintiff to recoer") 4ut ntario doeshae an interest in highwa! safet! so apply 7ntar

law without the guest statuteG. &e!ol5in) Tr"e Conflict!

a. 8rue $onflict7a conflict in which %ore than one of the states inoled is interested inhaing its law alied

b. Law of the Foru% (Currie)i. &"le: where there e@i!t! a tr"e conflict and the intere!t! of the for"7

!tate and the forei)n !tate are e"all# !tron)9 the for"7 co"rt will appl#it! own law. Lilienthal . -auf%an(laintiff sold goods to Lilienthal in Califorin echange for ro%issor! notes@ Lilienthal had been declared a sendthrift regon and all obligations were annulled@ laintiff sued in regon to collect othe notes@ traditional rule under interest analysis is that forum law applies whthere is a true conflict)

c. Aoderate and #estrained Bnterretationi. #pparent $onflict7 each state would be constitutionall! &ustified in asserting a

interest but on reflection the conflict is aoided b! a %oderate definition of tholic! or interest of one state or the other (reasonable %en %a! disagree onwhether a conflicting interest should be asserted)

ii. $and the false conflict scenario and restrain one state3s olic! throughrealistic alication

iii. 4ern*rant . Fowler (Cal. 1H1) (;6 laintiffs %ade a real estate deal with ;6decedent in echange for a ro%ise that decedent would forgie certain debtin his will@ decedent died in C without fulfilling ro%ise@ C law inalidated toral ro%ise on statute of frauds@ ;6 would hae enforced the oral ro%ise@court held that entire transaction occurred in 9 and $#/s interest was wea+

comparison; even though $# has an interested in its domiciles, the court toorestrained approach limiting $#/s interest; the court did not balance the stateinterests)

d. Co%aratie B%air%ent and 5olic!,'electing #ulesi. :o not weigh or balance the interests of each&urisdiction@ %a*e a decision

based on an indeendent rincile1) Loo* at the interest of the states inoled2)


16/38


+his olic! would be seerel! i%aired if C law did not al!because the urose of the law would not be full! effected if itwas not etended to all taerns that adertise and solicit businein C

") ;eada3s olic! would not be itiated b! alication of C lawbecause the urose of the law is not toprotectbar*eeers but rathto li%it liabilit! to the cri%inal enalties in lace

iii. &"le: in the co7parati5e i7pair7ent anal#!i!9 if one of the co7petin)law! i! archaic and i!olated9 it 7a# rea!ona6l# #ield to 7ore pre5alentand pro)re!!i5e law *all other factor! 6ein) e"al+. ffshore #ental Co. Continental il Co.(Cal. 18) (laintiff sent e%lo!ee to Louisiana ande%lo!ee was in&ured there@ laintiff sued under an old C law allowing ane%lo!er to recoer if its e%lo!ee3s in&ur! reented the e%lo!er fro%carr!ing out its business@ L had a related law that was %ore narrow and didnot allow recoer!@ court applied L# law because it was more current andviable, and because L#/s interest in attracting business would be moreimpaired by the application of $# law, while $# had no strong impairmentbecause it rarely applied its law anyway)

i. Bnternal ersus eternal goern%ent ob&ecties

1) Bnternal ob&ecties underlie a state3s resolution of conflicting riateinterests in wholl! do%estic cases

2) $ternal ob&ecties are the ob&ecties of each state to %a*e its lawal! to ersons to who% it owes a resonsibilit!

e. 5rinciles of 5reference (creating a set of rules to al!)i. +he law of the state of in&ur! should al! if it is %ore rotectie of laintiffs

than the law of the state in which the defendant resides or actedii. +he law of the state where defendant acted should al! if it is less rotecti

than the law of the laintiff3s ho%e state.f. #eturn to $ectations of +erritorialit!

i. Ciolla . 'haos*a (5enn. 10) (5 laintiff and A argued that -ansas law should al! because that lawli%ited liabilit!@ court held


17/38


interest domicile of decedents before death, relationship between the parties, justifieexpectations, basic policies underlying field of law, uniformity and predictability)

c. =se enu%erated general considerations to %a*e this deter%inationi. +he needs of the interstate and international s!ste%sii. +he releant olicies of the foru%iii. +he releant olicies of other interested states and the relatie interests of

those states in the deter%ination of the articular issue

i. +he rotection of &ustified eectations. +he basic olicies underl!ing the articular field of lawi. Certaint! redictabilit! and unifor%it! of resultii. $ase in the deter%ination and alication of the law to be alied

d. #eference absolute rules that will al! in certain casesi. &eal propert#7 law of the situs aliesii. Mo5ea6le propert#*inter 5i5o!+7 the law of the lace where the roert! is

located aliesiii. Mo5ea6le propert#*inte!tate+7 the law of the lace where the decedent is

do%iciled at the ti%e of death aliesi. Stat"!7 law of the do%icile alies

e. lso consider resu%tions that certain laws will al! in certain cases

i. +hese resu%tions %a! not hae an! real alue because the! reert bac* tthe First #estate%entKtraditional rules

ii. It is possible to overcome these presumptions using = 5 if, with respect to aparticular issue, some other state has a more significant relationship%-

iii. $a%les1) Tort!7 alicable law will nor%all! be the lace where the in&ur!

occurred2) Spo"!alfa7il# i77"nit#7 alicable law will nor%all! be the law o

the arties3 do%icile") Contract!7 alicable law will nor%all! be the lace of the %a*ing o

the contract and erfor%ance if the sa%e (sub&ect to so%eecetions). Dood 4ros. Io%es Bnc. . Dal*er d&ust%ent 4ureau

(C contractor entered into contract with defendant in ;A to wor* oro&ect in ;A@ ;A officials stoed the wor* because contractor wanot licensed in ;A@ contractor sued in C to recoer for wor* done@C law would hae allowed recoer!@ ;A law bars recoer! for anunlicensed contractor once he is off the &ob@ M/s interest incontrolling construction, licensing and contracting outweighs $7/sinterest in validating contracts and protecting $7 parties/expectations; presumption that the law of the place of performanceapplies is not overcome here)

E) Capacit# to contract7 alicable law is nor%all! the lace of do%icof the art! at issue

G) Contract"al for7alitie!7 alicable law is nor%all! where the

contract was eecutedH) Stat"te of li7itation!7 foru% will al! its own law barring the actio

or er%itting the action unless7 Aaintenance of the action would sere no significant interest o

the foru% and +he action would be barred under the statute of li%itations of a

state haing a %ore significant relationshi to the arties andoccurrence

i. d hoc balancing where no resu%tions al!

1


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1) +orts7 lace of in&ur! do%icile residence nationalit! lace ofbusiness lace where the relationshi between the arties is cente

2) Contracts7 lace of negotiation eecution erfor%ance location ofthe sub&ect %atter and do%icile residence nationalit! and lace ofbusiness of the arties

E. 'econd #estate%ent aroach is said to fail recisel! because it is not based on an!hilosohical aroach

a. Bt eects courts to al! rational logici. 5eole . 1HE 6ictoria (+P bu!er urchases car fro% +P seller in +P on a

%ortgage that reuires the car to sta! in state until the %ortgage is aid@ bu!too* car to C and car was i%ounded when drugs were discoered@ bu!er iin &ail not %a*ing a!%ents@ seller sued for return of car@ C law reuiresreasonable inestigation of bu!er rior to sale@ +P law allow reossession ewithout inestigation rior to sale@ reasonable expectations of the seller weighmore heavily in favor of 8> law especially against $#/s little interest in the caitself)

b. 4ut it also reuires courts to al! rules that hae no %eaningG. Center of 'ra5it# Approach *4ew orG co"rt!+

a. +he 9center of grait!: aroach led to the 9%ost significant contacts: test of the'econd #estate%ent

b. +ension between uten and Iaag led to deelo%ent of Q H of 'econd #estate%eni. &"le: "nder the ;center of )ra5it#< approach9 the co"rt will appl# the law

of the place ha5in) the 7o!t intere!t in the ca!e.uten . uten(; 1G($nglish coule searate and husband %oed to ;@ wife went to ; to signsearation agree%ent with husband where he ro%ised to a! suort if wifedid not sue@ husband did not a! searation suort so wife filed suit in$ngland@ she droed that suit but brought another in ;@ under ; lawhusband would not be liable because wife breached the agree%ent b! filing seen though she didn3t follow through@ under $nglish law wife could recoer@even though traditional rule would apply & law because agreement wassigned in &, court held 0nglish law applies because it is the center of gravity(marital domicile))

ii. &"le: in deter7inin) the law applica6le to a contract9 the co"rt! wille7pha!ie the law of the place which ha! the 7o!t !i)nificant contact!with the 7atter in di!p"te *rather than looGin) to the partie!? intention! the place*!+ of 7aGin) or perfor7ance+. Iaag . 4arnes(; 1H1) (BLlaw!er i%regnated his secretar! in his ; office@ secretar! went to BL to signchild suort agree%ent@ secretar! brings suit in ; later for additional suounder BL law contract was binding@ under ; law@ contract for child suortwould onl! be binding if it went before a &udge who deter%ined fairness@ courheld center of gravity was IL because that was where the contract was signeeven though the relationship occurred in and child lived in &)

F. The Better Law

1. Leflar?! rinciple!a. 5redictabilit! of #esults

i. +o aoid foru% shoingii. +o rotect eectations

b. Aaintenance of Bnterstate and Bnternational rderi. %ere reference for one3s own law in an! gien instance is not aroriate

c. 'i%lification of the Judicial +as*i. +his is not articularl! i%ortant

d. dance%ent of the Foru%3s >oern%ental Bnteresti. +his is different than arochial local interest

18


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ii. +his is the foru%3s interest in doing &ustice (fairness and funda%ental rightneiii. +his can be considered an altruisticinterest as oosed to Currie3s selfish

interest in interest anal!sise. lication of the 4etter #ule of Law (%ost otent)

i. +his is a weighing of the conflicting lawsii. Choice of law rinciles hae alwa!s fought against this

2. Ail*oich . 'aari (Ainn. 1") (ntario drier and assenger are in an accident in Ainn.@ntario has a guest statute@ Ainn. does not hae a guest statute)

a. 5redictabilit!7 torts aren3t redictable (but we can also loo* at this as aninsuranceKcontract case)

b. Bnterstate considerations7 international order would not be disruted b! alication oeither law

c. 'i%lification7 both laws are eas! enough to al!d. Foru%3s goern%ent interest7 Ainn.3s goern%ental interest is in allowing an in&ured

erson to collect fro% the indiidual at faulte. +he better law7 the court loo*s at seeral secific factors including the fact that gues

statutes hae been increasingl! reealed and archaic@ court holds that &udges shouldfind collusion between driers and assengers as a factual %atter rather thanregulating that &udg%ent(so Minn% law applies)

". Jeson . >eneral Cas. Co. of Disconsin (Ainn. laintiff was in&ured in riona@ he owned business in ;< and insured si co%an! cars in ;< using ;< rates@ Ainn. law allowedstac*ing@ ;< law did not allow stac*ing@ court applied : law)

a. 5redictabilit!7 the insurance contract related to ;< ehicles for an ;< co%an! baseon ;< rates@ redictabilit! and certaint! would be sered b! al!ing ;< law

b. Bnterstate order7 this case see%ed to inole foru% shoing because the suit wasbrought in a state that allowed stac*ing@ discouraging foru% shoing would sereinterstate order

c. 'i%lification7 not a consideration hered. Foru%3s goern%ent interest7 the foru% had an interest in co%ensating tort icti%s

but also had an interest in contractual integrit!@ the court thought that in cases of clouestion the altruistic alue (co%ensating the icti%) %ight reail

e. +he better law7 the court had trouble with this because one state cannot ic* which lbetween the two &urisdictions is best

'. Other ro6le7!

1. Depeca)ea. Application of r"le! of different !tate! to deter7ine different i!!"e! in a !in)le

!"6!tanti5e ca"!e of actionb. 'ubstantie and rocedural distinctionsc.


20/38


does not hae sousal i%%unit! but reuire secial contractual roision not eistenhere@ court held that & law (place of wrong) would apply to tort so that wife couldbring suit and 1 law (place of tort) would apply to the contract so that defendant coucollect on insurance)

i. Bt %a! be ossible to distinguish this fro% the h!othetical71) +he h!othetical inoled charitable i%%unit! and negligence

standards unrelated

2) +he case inoled sousal i%%unit! for a tort and the abilit! to colleon insurance when sued b! a souse related as for%s of sousali%%unit!

ii. rguabl! we should not al! deecage to related issue and instead loo* tothe whole law

2. &en5oi and Intere!t Anal#!i!a. 5fau . +rent lu%inu% Co. (C+ laintiff was in&ured in Bowa in an accident with ;J

defendant@ Bowa has guest statute@ ;J and C+ do not hae guest statutes)i. Bowa law should not al! because Bowa has no interest in al!ing its guest

statute to this situation (thus no conflict)ii. Connecticut follows lex loci delicti@ ta*ing Connecticut3s choice of law rules in

account Connecticut would al! Bowa3s substantie lawiii. ;J court held that C+3s lex loci delictirule wasprocedural@ the alication of

C+3s choice of law rules has nothing to do with substantie olicies. +he reainterest is in al!ing C+ law and there is no conflict.

b. %erican Aotorists Bns. Co. . #+# >rou Bnc. (A< insurer entered into insuranccontract in BL@ insurer clai%ed it was not liable for coerage of cleanu of toic wasteA< nor%all! alies law of the lace where the contract was %ade (here BL)@ M:court loo+ed to IL whole law, which applies the place of the most significant contactsthe forum in this case, both pointing to M:; so M: law applies )

". &"le! (er!"! Standard!a. #ules7 li%its arbitrar! eercise of authorit! %ini%ies the costs of ad%inistration an

%ai%ies certaint!b. 'tandards

E. Co7ple@ Liti)ationa. Class actions

i. 4est wa! to defend a class action is to get certification deniedii. Class action certification or denial is sub&ect to interlocutor! aealiii. 5ossible results

1)


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national law because applying state law for every individual would be impossible , buwasn3t federal co%%on law outlawed b! $rie? 5arties settled)

c. LB Co%le Litigation 5ro&ecti. Liabilit! 7 al! the following rules in successie order of eli%ination inorder t

resole true conflicts regarding liabilit! law71) +he state of conduct if the in&ur! is also in that state@2) +he state in which all laintiffs and a defendant habituall! reside or

hae their rincile lace of business with regard to clai%s againstthat defendant@

") +he state in which all laintiffs habituall! reside or hae their rincilace of business if that state is also the lace of in&ur!@ and

E) Bn all other cases the state in which the in&ur!,causing conductoccurred

ii. Co%ensator! da%ages 7 the sa%e law that goerns liabilit! will goern theissue of %onetar! relief other thanunitie da%ages@ the issues of %onetar!relief and liabilit! %a! be searated (deecage) if the olicies underl!ing thefor%er are different fro% those underl!ing the latter

iii. 5unitie da%ages 7 law on unitie da%ages is alicable if two of the threeoints of contact are shown (but defendant can reent the alication ofunitie da%ages law b! showing the i%osition was not foreseeable to thedefendant reasonable expectations)

1) 5lace of in&ur!2) 5lace of conduct") 5rincile lace of business or residence of defendant

G. Conflict! in C#6er!pacea. -e! issues

i. Dhere can the defendant be sued?ii. Dhen and how do we enforce foreign &udg%ents?iii. Dhat if the offender is abroad and the icti% or consirator is in the ='?i. Iow do we deter%ine obscenit! across national boundaries?

b. +reatiesi. +reaties hel define international rights and obligationsii. 4ut constitutional rules %a! reent these roble%s fro% being co%letel!

soled b! treatiesc. The S tend! to "!e a territorial%6a!ed 7ethodolo)#9 followed 6# an applicatio

of traditional choice of law principle!d. $nforce%ent of foreign &udg%ents has been a roble% but 'C+=' has not reall!

addressed this.i. Licra $t =$JF . ahoo Bnc. (France) (ahoo.co% adertised the sale of ;a

arahernalia accessible in France@ this iolated French law@ French courtordered ahoo to reent French consu%ers fro% accessing this %aterial)

ii. ahoo Bnc. . LBC# (=') (French org sought to enforce French &udg%ent inthe ='@ ahoo argued against enforce%ent citing First %end%ent@ court he

principles of international comity were outweighed by court/s legal obligation uphold 3irst #mendment)

e. Bnternational co%it!7 the recognition of foreign rules and decisionsIII. Con!tit"tion and Choice of Law

A. Li7it! of Le)i!lati5e $"ri!diction

1. D"e roce!! *Fo"rteenth A7end7ent+a. #elationshi of law to the indiidual (due rocess rights of indiidual arties)b. Bssue7 funda%ental fairness and ecetion

21


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c. +he court hae ta*en a er! lenient osition on due rocess7 if there i! anycontact7ore than de minimis9 the application of that law to the part# with tho!e contacwill not 6e 6arred.

i. ;ew or* Life Bns. Co. .


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1) 5acific $%lo!ers Bns. Co. . Bndustrial cc. Co%%3n (1")/essentiall! oerruling Claer (Aass. e%lo!ee was wor*ing for aAass. e%lo!er in C and was in&ured there@ court held $# law couapply by distinguishing $lapper because ' did not have an interesin that case but $# does here) /;ote that there is no 6alancin) at ahere an! interest is sufficient to subordinate the other state3s lawO

2) Carroll . Lana (1GG) (A subcontractor wor*ing for a A e%lo!

was in&ured in r*ansas but is treated in A@ e%lo!ees were li%iteto wor*ers co% in A but r*ansas law allowed e%lo!ees to sugeneral contractor as well@ court held #r+ansas law could applybecause #r+ansas had an interest in cases li+e this) /;ote that thecourtdefiniti5el# reect! 6alancin) hereO

iii. rder of =nited Co%%ercial +raelers . Dolfe (1E) (hio assoc. establishlife insurance olicies for its %e%bers@ '< %e%ber died and widow did not%a*e clai% within si %onths as reuired b! the olic!@ '< law inalidated thti%e li%itation@ court reversed under full faith and credit because there is aspecial rule giving priority to the law of the state of incorporation of fraternalorders rather than balancing, the court was assuring uniformity amongmembers)

". Con5er)encea. &"le: the polic# intere!t in the ca!e 7"!t 6e effect"ated 6# the law at i!!"e !o

that application of the law i! neither ar6itrar# nor f"nda7entall# "nfair.i. llstate Bns. Co. . Iague (181) (accident in DB between two DB citiens@

widow brought suit in Ainn. because Ainn. allowed stac*ing of her threeolicies and DB did not@ court allowed Minn% law to apply@ d"e proce!!contact! (a) insurance olic! coered accidents an!where not li%ited to D(b) widow beca%e a Ainn. citien (") decedent wor*ed in Ainn. eer!da!before death@ f"ll faith and credit this oint was folded into the due rocesargu%ent but it is %ore co%licated because Ainn. has no real interest indecedent as a for%er e%lo!ee and %a! hae an interest in the welfare of thAinn. widow but both of those are unrelated to the insurance stac*ing issue)

1) Cf. ates(due rocess does not allow ost,eent state law to al!the defendant has no contacts with the new state and laintiff %oethere onl! for litigation uroses)

2) Datson . $%lo!ers Liab. ssur. Cor. (L citien was in&ured b!%achine roduced b! BL co%an!@ laintiff sued co%an!3s insurerunder L direct action statute@ court held L# could apply its own lawbecause the insured co% did business all over the country (due

process) and L# has an interest in protecting its citi@ens from injuryL# (full faith and credit))

ii. 5hillis 5etroleu% Co. . 'hutts (5hillis leased %ineral rights fro% land ownin echange for sales ro!alties@ 5hilli could file reuest to raise rices withF$#C and could raise those rices during the roisional eriod before

aroal but would not a! higher ro!alties during that ti%e@ laintiffs filedclass action in -'@ statute of li%itations ran in %ost other states@


24/38


") 'ure%e Court held that -' can retain &urisdiction but %ust gothrough the constitutional conflicts anal!sis for each state clai%

E) J. 'teens concurring7 while loo*ing at the law of the other statesthere %a! be no conflict so -' law could al! an!wa! in so%einstances

iii. Franchise +a 4oard . I!att (C ta board audited I!att in ;6@ I!att clai%intentional torts co%%itted b! the auditors@ C i%%unied ta auditors but ;

did not i%%unie for intentional torts@ 9 court applied its own law because tforum had articulated an interest in protecting citi@ens specifically fromintentional torts from anyone)

1) ;eada . Iall (;6 official wor*ing in C in&ures a C citien@ ;6 ha soereign i%%unit! law li%iting da%ages@ laintiff brought suit in Cbecause C waied soereign i%%unit!@ court applied $# lawbecause the forum had articulated an interest in protecting its citi@enfrom injury and allowing them to collect damages from anyone; thisalso satisfies due process because 9 +nowingly sent employee in$#)

b. After%the%fact 7o5e into the for"7 i! not rele5ant for thi! anal#!i!. Cla! . 'unBns. ffice Ltd.(BL citien urchased roert! insurance fro% 4ritish insurer doing

business in BL and FL@ insured %oed to FL and lost the roert!@ insurer clai%edinsured did not bring clai% within reuired 12 %onths@ FL statute of li%itations was G!ears@ court applied 3L statute of limitations because insurer did business in 3L andinsured moved there before the loss (due process) and 3L has an interest in protectithe personal property of its citi@ens (full faith and credit))

c. &e"i!ite le5el of !tate! intere!t: i! proced"ral intere!t eno")hi. 5acific $%lo!ers (C did not hae to gie u its re%ed! in faor of the re%e

offered b! Aass. law but this holding does not necessaril! %ean thatrocedural interest is sufficient for full faith and credit)

ii. 'hutts (rocedural interest alone is not sufficient for full faith and credit@substantie interest is also reuired)

iii. 'un il . Dort%an (188) /'hutts on re%and (-' court alied its statute o

li%itations to all clai%s een if the substantie law of other states was to bealied@ .upreme $ourt affirmed because statutes of limitations are procedurand thus governed by forum law) /;ote that the Court here alied conflicts olaws rinciles to a constitutional uestion@ the eansion of a right b!etending the statute of li%itations for so%e clai%s %a! actuall! iolate duerocess.

d. Ferens . John


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sue for wrongful death if the accidents occur outside ?I; full faith and credit requiresone state to ta+e of the law of another when necessary; therefore, it violates full faithand credit for ?isconsin to legislate that it will never entertain another states/ laws )

b. 4roderic* . #osner (1"G) (; laintiff brought suit in ;J against ;J shareholders ofailed ; ban*@ ;J law set forth rocedure reuiring laintiffs in these t!es of casessue shareholders andan! other arties affiliated with the ban* this would hae beea legal i%ossibilit!@ court held the purpose of 1 law is not to effect any 1 policy, brather to prohibit success of any out2of2state suit; therefore, 1 may not reject theapplication of another state/s law)

2. E"al rotectiona. &"le a for"7 cannot ref"!e "ri!diction witho"t !o7e !ort of proced"ral

"!tification8 thi! i! a for7 of di!cri7ination a)ain!t application of the law ofanother !tate

i. Bf forum non conveniensis alied based on ealuation of seeral factors andon a case,b!,case basis then it is a %eritorious doctrine and not discri%inati

ii. Loo* to see whether the basis for the re&ection of the case is rocedure orsubstance is it outco%e,deter%inatie? rocedure %a! be outco%e,deter%inatie but if it is alied euall! it will not iolate full faith and credit.Dells . 'i%onds brasie Co.(laintiff was in&ured in laba%a b! defendanroduct@ laintiff filed suit in 5 under L law@ 5 court held substantie L laalied but dis%issed the case based on its own statute of li%[email protected] court held this was not discriminatory because the one2year statutelimitations was applied by "# court to all cases regardless of applicablesubstantive law)

b. +ennessee Coal Bron R ## . >eorge (11E) (> laintiff in&ured in L@ he sues+ennessee Coal in > under the L e%lo!er liabilit! statute@ L reuired those suito be brought in L court so > dis%isses the suit based on the L statute3sreuire%ent@ court held the cause of action is transitory, so a forum state is ordinarilyrequired to give full faith and credit to all applicable substantive provisions of anotherlaw, but not to venue provisions; #L cannot give a cause of action while prohibiting thcause of action to be exercise in any court having jurisdiction) /;ote that if laintiff w

not fro% >eorgia >eorgia would hae no real olic! interest in the case and it wouldhae to al! allof laba%a3s law.

". Crider . Murich Bns. Co (L resident in&ured in L wor*ing or > cororation@ he sued in under > wor*ers co% statute which reuires that clai%s be brought to wor*ers co% borather than court)

a. >eorgia has a strong interest in haing its board roision al! because the board co%rised of eerts that deter%ine the etent of in&ur! and creates a funda%entalasect different fro% the law as it would be treated in court.

b. laba%a has a strong interest in roiding its citiens with a foru% and arguabl! aninterest in the tribunal asect of that foru%. 8herefore, #labama has an interest andcould apply non2tribunal substantive provisions of the A# statute without violating fufaith and credit.

c. Bf laba%a dis%issed the case based on the board roision of the > statute it wonot iolate Iughes because >eorgia has an interest in al!ing its law and hasersonal &urisdiction oer the defendant@ so laintiff could bring suit in >eorgia no%atter how inconenient.

E. Deaer . laba%a >reat 'outhern ## (L resident in&ured in L while wor*ing for an Lcororation@ he sued in > to aoid L3s contributor! negligence law@ L en&oined > fro%hearing the suit@ this was the correct result because A# had no interest in the suit, nocontacts to the case, and would have violated full faith and credit and 'ughes by ignoring

#L/s exclusive interest)C. ncon!tit"tional Di!cri7ination in Choice of Law

2G


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1. ri5ile)e! I77"nitie!E"al rotection Cla"!e!a. +he citiens of all states are entitled to the riileges and i%%unities of all states

(ecluding cororations or aliens)b. Dhat is a riilege ?

i. +hose riileges and i%%unities which are in their nature funda%ental@ whicbelong of right to the citiens of all free goern%ents@ and which hae at alti%es been en&o!ed b! the citiens of the seeral states

1) Funda%ental rights include owning roert! riate e%lo!%ent arights to state benefits (welfare)

2) Balancing test7 it is o*a! to discri%inate if there is a good reason anthe restrictions are on triial rights

ii. 4aldwin . Aontana Fish R >a%e (nonresident challenged Aontana3s rule ofcharging %ore for hunting licenses to nonresidents ersus residents@ huntinga riilege and a state cannot reclude nonresidents fro% hunting@ but it isrecreational rather than fundamental so M8 can charge more to nonresidentsfor hunting licenses@ this would be different if the nonresident was charged%ore to hunt commercially)

iii. Bt has been argued that interest anal!sis should be outlawed because it iola5riileges and B%%unities (the er! choice of law is discri%inator! because itbased on a art!3s residence and a court3s interest in al!ing or not al!ingthat certain law)

2. 'ure%e Court of ;I . 5ier (5ier lied in 6+ near the ;I border@ she alied to ta*e th;I bar but ;I denied her reuest because she was not a ;I resident@ the right to ta*e aea% to enter a rofession is a coered riilege@ ;I clai%ed its reason to discri%inate wabecause law!ers are officers of the court and nonresidents shouldn3t be inoled in stateaffairs@ court rejected these arguments lawyers are not state officials, there is no reason believe 98 residents will be less familiar with ' law or less ethical, ' bar governs lawyeconduct no matter where they live, and 98 residents will be just as responsible for ma+ingcourt dates and doing pro bono)

OTHE& ALICATIO4S

I(. &eco)nition of $"d)7ent!A. &e! $"dicata and Do7e!tic olicie! of Finalit#

1. Two a!pect! of "d)7ent reco)nition with a !tatea. &e! "dicata(clai% reclusion)

i. second suit cannot be used to litigate a clai% that should hae been raiseda rior action

b. Collateral e!toppel (issue reclusion)i. +he issue %ust hae been raised and litigatedii. +he art! who reailed can reent an issue fro% being re,litigated in a

searate action 51 . < (< found negligent)

52 . < (collateral estoel alies because %utualit! no longreuired)

riginal suit has to be litigated on the %erits and fairl! tried

51 . < (< found not negligent) 52 . < (collateral estoel cannot al!)

2. AttacGin) a "d)7enta.


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i. rgu%ent that a &udg%ent should not be gien reclusie effect in a searateaction

ii. $ach state deter%ine when collateral attac* is er%ittedc. Full faith and credit

i. 28 ='C Q 1"87 &udg%ent of one state %ust be honored b! anotherii. +he scoe of the suit will deter%ine the effect of the &udg%ent in another stat

B. F"ll Faith and Credit to $"d)7ent!

1. 'eneral &"le!:a. court %ust enforce a &udg%entb. court %ust enforce a &udg%ent to the etent it affects the articular arties

(arborough)c. +he rendering court deter%ines the scoe of the &udg%ent@ a art! cannot bring a

second clai% in a second state for an issue included in the scoe of the first &udg%ed. +he rendering court does not bind indiiduals not art! to the original suite. $cetions to full faith and credit7

i. +he first court %a*es a legal rather than factual deter%ination (this can be relitigated b! a second court)

ii. #eal roert! is not within the &urisdiction of another state (Clar*e)2. Fauntlero! . Lu% (arties entered into contract in A' on ga%bling in futures rohibited b!

A' law@ after a disagree%ent arties went to an arbitrator and co%lainant got an award@reailing art! too* the arbitration award to A for enforce%ent and reailed@ reailingart! then too* the A &udg%ent to A' for enforce%ent@ A' court refused to gie effect tothe A &udg%ent as abhorrent to A' ublic olic!@ .upreme $ourt required M. to enforceM7 judgment under full faith and credit)

a. De need a rule that %a*es &udg%ents alid eer!where@ without such a rule&udg%ents beco%e unreliable and insecure

b. ;ote that state and federal laws now allow a reailing art! to register a certified coof a &udg%ent in a second state where it is then gien effect (rather than 9action on a

&udg%ent:)". arborough . arborough (> court decreed a diorce gae custod! to the %other and

reuired father to a! a lu% su% one,ti%e a%ount@ child %oed to 'C to lie withgrandfather@ when she turned 1H she brought suit in 'C for %ore child suort@ 'C courtordered the father to a! an additional su% er %onth@ .upreme $ourt held that A# orderwas not modifiable and father had already applied; full faith and credit required .$ court torecogni@ed A# decision as final)

a. 'econd state in Fauntlero! would not hae recognied first state3s &udg%ent at allb. 'econd state in arborough recognied first state3s &udg%ent but %odified the origin

&udg%ent@ dissent in &arborough believes recognition and reinterpretation satisfied ffaith and credit

E. Iart . %erican irlines (;J icti%s brought suit in +P against airline for accident in - anreailed@ ; icti%s then brought second suit for sa%e accident in ;7 airline argued +P

&udg%ent estoed further liabilit! and that further%ore +P still relied on %utualit! so ;laintiffs would not hae been able to rel! on reious &udg%ent@ essentiall! airline arguedthat full faith and credit alies not onl! to the &udg%ent itself but to the limitationson the

&udg%ent as well@ & court held the judgment could be given preclusive effect in & uponwhich plaintiffs could rely; when a second suit is at issue (rather than just modification of th

prior judgment), the second court may determine how much effect is to be given to theprevious judgment)

G. Bf the rendering state would allow a collateral attacG on the "d)7ent then a second stacan roide a foru% for the sa%e *ind of collateral attac*@ this would be consistent with fullfaith and credit (no %ore no less)

C. $"d)7ent! and the Intere!t of the For"7

2


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1. +ho%as . Dashington >as Light Co. (


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and sued for enforce%ent and inalidation of deed to third art!@ ebras+a court held ?#had no subject matter jurisdiction over land in ebras+a and the court/s deed is thereforeunenforceable)

a. +his case does notstand for the roosition relating to full faith and credit but rathefor the roosition that the Dashington court had no ower to %a*e a deed to land inanother &urisdiction

b. +he diorce decree was accetable but the method of enforcement should hae bee

left to ;ebras*a'. 4on%Final Decree!

1. &udg%ent is final if a court sa!s it is final and enforceable (states hae their own rulesregarding finalit! during aeal)

2. Aodifiable (suort) decrees are non,finala. Aodifiable decrees can be artiall! final if %odifiable onl!prospectivelyb. 'tandards for %odification are those of the rendering court@ a second court %a!

%odif! but %ust use rendering court3s standards". Dorthle! . Dorthle! (;J coule %arried and searated there@ ;J searation decreed

ordered husband to a! wife wee*l!@ husband %oed to C and stoed a!%ent@ wifebrought suit in C see*ing bac* a! and continuation of wee*l! a!%ents@ 1 order wasmodifiable prospectively and retroactively; if the court order was modifiable only

prospectively, it would have been enforceable in any other jurisdiction)a. =nifor% Bnterstate Fa%il! 'uort ct

i. Aodification of an order for sousal suort %a! onl! be sought in issuing stii. Aodification of an order for child suort %a! be sought in an! other state if t

custodial arent or suorting art! leaes the rendering stateiii. Bn the case of %ultile orders of suort the controlling order is the one issue

b! the state where the child residesH. E"ita6le Decree! and O6li)ation to Enforce Si!ter%State $"d)7ent!

1. $uitable decrees are final@ those resulting in da%ages are binding orders entitled to full faand credit

2. Bn&unctions can onl! be enforced under full faith and credit as long as there are no new

artiesa.


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I. State $"d)7ent! in Federal Co"rt

1. Federal law re"ire! federal co"rt to )i5e f"ll faith and credit to !tate "d)7ent!2. llen . AcCurr! (AcCurr! lost %otion to suress during state court cri%inal trial@ AcCurr!

then brought a Q 18" suit in federal court alleging unconstitutional search and seiure@AcCurr! argued that state &udg%ent should not be gien reclusie effect because Q 18"was secificall! assed due to state courts3 failure to indicate constitutional rights (Q 18"9cares out: an ecetion to full faith and credit)@ .upreme $ourt held that this is more anissue of collateral estoppel particular issue rather than full faith and credit; = DE6F itselfdoes not preclude application of collateral estoppel; a federal court may loo+ to a factualmatter decided in a different, but related, case in another jurisdiction, but it is not bound to so because the issue preclusion matter is different from full faith and credit given to a

judgment)$. Settle7ent and Clai7 recl"!ion

1. Aatsushita $lectric Bndustrial Co. . $stein (laintiffs filed class action in


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i. 'herrer . 'herrer (if both souses consent to &urisdiction of the diorce,decreeing state the final diorce decree is binding as to all issuesbecauseboth arties hae an oortunit! to be heard on &urisdiction do%icile suorcustod! etc.@ such a diorce also binds the goern%ent to recognie and gifull faith and credit to eer! asect of the diorce decree cf. Dillia%s)

ii. Johnson . Auelberger (FL reuired 0,da! do%icile for &urisdiction in diorceroceeding@ father died and left eer!thing to daughter but daughter would

hae to share with third wife@ daughter clai%ed that husband3s diorce fro%second wife was inalid because wife had not co%lied with FL3s 0,da!reuire%ent@ court held divorce valid because (a) the divorce was a consentdivorce so domicile was moot, and (b) a third party to the marital relationshipwas attac+ing the divorce here)

iii. A! a )eneral r"le9 S co"rt! will reco)nie forei)n di5orce! e5en tho")there i! no re"ire7ent to reco)nie other forei)n "d)7ent!. #osensti. #osenstiel(husband went to Aeico to obtain diorce@ he signed 9residencregistration and filed for diorce onl! sta!ed in Aeico about one hour@ wifeconsented to diorce in Aeico and had Aeican law!er aear on her behadivorce was held valid because it was consensual it would have been invalif ex parte for lac+ of domicile)

". Sa7e%Se@ Di5orce and Di!!ol"tiona. Bssue7 whether to dis%iss for lac* of &urisdiction

i. #osengarten .


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ii. #eal &urisdiction oer the arties is reuired. Cf. Aa! . nderson(courtdecided custody and support within the divisible divorce decree in order toavoid jurisdiction requirement@ this case has since been o5err"led there hato be &urisdiction oer the other art! in order to hae &urisdiction oer custodand suort issues)

b. An# !tate "d)7ent 7ade alon) the!e line! i! 6indin) in other "ri!diction!c. +raditional standard7 ealuation of the best interest of the child (etitioner for custod!

could bring the child before the court and %a*e a clai%)d. =nifor% Child Custod! Jurisdiction and $nforce%ent ct (=CCJ$)

i. tte%ted to sole &urisdictional issues in custod! roceedingsii. state has &urisdiction oer the custod! roceeding if the state was the child

9ho%e state:iii. 9Io%e state: is where the child lied for at least si consecutie %onths

i%%ediatel! before the filing of the custod! clai%i. Co"rt interpreted the CC$EA to find a ;ho7e !tate< when a !i@%7onth

period of re!idence wa! e!ta6li!hed within!i@ 7onth! of filin)(this helaoid the roble% of li%bo). Delch,rah% . 'uerior Court (father granted etended isitation rights b

C court@ %other and child %oed out of C to ;@ father sought fucustod! rights in C@ court held $# still had exclusive jurisdictionbecause the child/s absence from the state did not sever $#/sexclusive control the presence of the father in $# plus visitationrights and a relationship with the child created a sufficient connectioto $# to retain exclusive jurisdiction)

;ote that this is onl! ajurisdictional and not substantiedeter%ination@ custod! deter%ination cannot be %ade b! an!other court ecet the courts of the original state (unless therehas been abandon%ent)

e. 5arental -idnaing 5reention ct (relies on the =CCJ$)i.


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2) +he Iague Conention has an ecetion to the 9re%ed! of return: Bthere is eidence that the child would be sub&ect to danger b! the nocustodial arent

. Balancin): "ri!dictional li7it! 5er!"! intere!t! of the child1) n one hand the Iague Conention3s scoe is strictl! li%ited to

deciding where a child should be so that the courts of the 9lace ofhabitual residence: of the child can decide custod!

2) n the other hand should the Iague Conention consider the childinterests in being returned to that lace where the courts hae

&urisdiction but the child %ight be in danger?i. Iow does the court of the new state get eidence sufficient to %a*e a

deter%ination as to re%ed! of return or an! alicable ecetions?1) +he eidence of ast or otential har% to the child is usuall! in the

original countr!2) ne argu%ent7 in these cases the child should go bac* to the origi

countr! so that courts of that state can deter%ine custod! based onlocal and aailable eidence

") nother argu%ent7 the first court should deter%ine the interests of tchild before sending bac* to the lace of habitual residence

ii. Bf one !ear has assed since a child was abducted that child is considered9settled: and there is no %ore aailable re%ed! of return under the IagueConention

iii. Bf a state has not signed onto the Iague Conention then the laws of that stadictate how to resole international &urisdictional issues

1) =' anti,*idnaing laws %a*e arents who abduct children into the=' liable if the re%oal of the child is not done roerl!

b. 6an de 'ande . 6an de 'ande (%other escaed fro% abusie husband in 4elgiu% the =' with her child@ district court held Iague Conention is urel! &urisdictional and4elgian courts are able to handle substantie custod! issue so the child should besent bac* to 4elgiu%@ appellate court gave more weight to consideration of welfare ochild and reverse the return decision and remanded) /+his case reresents the

funda%ental argu%ent regarding the interretation of the scoe of the IagueConention.

C. Decedent!? E!tate!

1. 5robate oer land %a! onl! be had in the lace where the land is located @ this %a! result in%ultile robate roceedings for one estate

2. t co%%on law courts would not recognie ad%inistrators aointed in another state so tresulted in %ultile ad%inistrators

a. +his rule has been *illed b! rules that er%it an ad%inistrator aoint at the decedendo%icile to sue and be sued whereer arts of the estate are located

". A pro6ate deci!ion! 7ade in one !tate )et f"ll faith and credit in an# other !tate "!tliGe a nor7al "d)7ent

E. A !tate 7a# appl# it! own pro6ate law! to per!onal and real propert# con!i!tent withit! interestsin the propert# and it! p"6lic polic#@ onl! &udg%ents are guaranteed full faand credit

G. 'tate courts rather than federal courts deal with do%estic %atters such as %arriage anddecedents3 estates. $cetions7

a. +orts between husband and wifeb. Aarshall . Aarshall (Aarshall3s will left eer!thing to his son@ +P court uheld will3s

roisions in robate@ '%ith filed ban*rutc! in federal court@ son filed clai% as acreditor against '%ith and '%ith filed counterclai% for fraud (which would not haebeen allowed during robate)@ '%ith ended u with 88 %illion deter%ined b! thefederal courts)

""


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(I. International Conflict!A. E@traterritorial &e)"lation

1. Le)i!lati5e $"ri!diction:the abilit! to al! our own =' law to foreign defendants in bothcri%inal and ciil cases)

a. +erritorialit! of the offensei. Bf the effect of the actiit! elsewhere has an i%act within the territor! of a

second state the second state %a! eercise legislatie &urisdiction oer theoffenders

ii. De reuire this within the ='7 if a erson co%%its a cri%e in one state andescaes to another he will be etradited to the &urisdiction of his cri%e

b. ;ationalit! of the offenderi. +his ti%e of &urisdiction includes both the ower to act and the ower to al!

state3s own laws to its nationalc. 5rotection of the national interest

i. +he basis for eercising legislatie &urisdiction %ust include direct effects ongoern%ental interests

d. =niersal rincilei. Ieinous cri%es onl! secified cri%es fall into this categor!ii. =nited 'tates . unis (Jordanian lane was hi&ac*ed in 4eirut@ hi&ac*ed lan

contained a few =' citiens@ one of the hi&ac*ers was found within the =' ancharged with iolations of =' laws rohibiting hostage,ta*ing and aircrafthi&ac*ing@ court found that territorial, national, and protective principles do noapply, but universal and passive personality principles do because hijac+ingand hostage2ta+ing are sufficiently serious crimes)

e. 5assie ersonalit! rincile based on the nationalit! of the icti% (wea*est)i. +his won3t al! eer! ti%e a icti% is a =' citien should be li%ited to

terroris% and assaults on =' citiensii. Fro% the ersectie of the defendant %a!be the law is different in that

countr! and the eectations of the defendant is that the laws of his stateshould al!

2. Li7it! on E@traterritorial Application in International Lawa. +he 'ure%e Court has addressed etraterritorial conflicts er! %uch li*e do%estic

conflicts with onl! additional considerations of custo%ar! international law and othergeneral rinciles of co%it!

b.


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iii. 4ut see Lauriten(


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#mendment does not apply to property outside the G. in these circumstances alieoutside the G.)

i. Fifth and 'ith %end%ents al! to aliens liing abroad but Courtdistinguished that these a%end%ents (a) al! to cri%inal defendants duringtrial and (b) result fro% different historical circu%stances@ Fourth %end%enco%es into la! before an indiidual beco%es a cri%inal defendant

ii. Iow do we deter%ine the reach of the =' Constitution?

1) Loo+ beyond the definition of people- and loo+ to the purpose of thelaw whether the policy has any currency beyond the borders of thG.

2) $en if the Constitution does not al! that does not %ean there islaw@ if the search is illegal under Aeican law erhas we shouldal! Aeican law to the search

B. E"ropean er!pecti5e

1. Ciil code s!ste%s are controlled b! statutes rather than recedent2. 'tatutes establish hard,and,fast rules@ law!ers use their s*ills to argue for or against

alication rather than reinterretation of the rules". +here are gas and a%biguities in $uroean statutes but cases and co%%entators are ta

with eual authorit!E. D . As. D. (>er%an husband and Canadian wife %arr! in Canada@ the! %oe to +P and

beco%e naturalied =' citiens@ the! continue to %oe all oer the world@ toward the end othe %arriage the! %oe to 'witerland@ wife went to >er%an! and husband filed for diorcin 'witerland@ .wiss law applies to the divorce)

a. =nder 'wiss law if one souse is do%iciled in 'witerland 'wiss law alies todiorce

b. 4ut if a husband and wife hae a shared nationalit! the law of that nationalit! alie(this is the result of a long histor! of focusing on nationalit!)

c. 4ut if there is a national law with a closer connection that law alies (and in this cathe coule hadn3t lied in +eas for %an! !ears)

C. Act of State Doctrine

1. In appropriate ca!e!9 a S co"rt will not )i5e an# "d)7ent that will o5ert"rn orconflict with an official deci!ion of a forei)n )o5ern7ent2. So"rce and !cope

a. +he ct of 'tate


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i. +his is usuall! a uestion for the courts as to whether o' alies but courtswill ta*e into consideration the osition of the 'tate


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c. +he role of nationalit!i. foreign countr! %a! eercise &urisdiction oer an indiidual who is a

nationalit! of that countr! but %a! not be a resident of that countr!ii. +he =' eercises &urisdiction based on residence and do%icile rather than

nationalit!iii. Dould the =' enforce such a &udg%ent based on nationalit! but not residenc

+he =' would robabl! not recognie such a default &udg%ent where the

national could not aear in the foreign court.". C"lt"ral difference!

a. Dould the =' enforce a &udg%ent in a court that reuired %one! bribes to a oliticalofficial for the &udg%ent?

b. Bt does not see% that the =' would enforce the &udg%ent but if it is rocedurall! souin all other wa!s can we loo* belowthe &udg%ent to the cause of action itself todeter%ine if there is a sound basis for the &udg%ent? 'ee Fauntlero! . Lu%(we %abe reuired to recognie a foreign &udg%ent een if it is against %oral olic!)

c. %erican tort cases are not gien %uch credibilit! in $uroe because $uroeans finfault with the &ur! s!ste% and unitie da%ages

E. Fra"d"lent "d)7ent!a. Bn the =' courts are slit on whether &udg%ents %a! be set aside for intrinsic fraud

(witness lied)b. 'o if there is no unifor% aroach in the =' how do we handle foreign &udg%ents in

nations with or without an intrinsic fraud rule?G. 4on%7one# "d)7ent!

a. =' in&unctions are difficult to enforce abroadb. 4ut we will enforce non,%one! &udg%ents in the =' if the &udicial s!ste% is

rocedurall! fair

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