Conflicts of Laws Friedenthal Fall 2008 CHOICE OF LAW: THE BASIC MODEL I. Traditional Approach to Choice of Law A.

. 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 a l!?) ". #ecognition and $nforce%ent of Judg%ents (where can the resulting &udg%ent be enforced?) a. Full faith and credit considerations b. 'tate statutes %a! e(ist that gi)e full faith and credit to international &udg%ents c. 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 a l! its own law as default and whene)er ossible b. +he e(istence of a state statute co)ering the sub&ect %atter will usuall! be decisi)e c. Co%it! (Justice 'tor!) i. 'o%ewhere between a %ere courtes! and legal dut! deri)ed fro% tacit consent of nations based on %utual forbearance and enlightened self,interest ii. -e! a(io%s 1) +he laws of each state ha)e force within the territor!. but not be!ond /elevates territorialism into the main operating principle0 2) +hese laws bind all those who are found within the territor!. whether er%anentl! or te% oraril! /elevates territorialism into the main operating principle0 ") 1ut of co%it!. foreign laws %a! be a lied so that rights ac2uired under the% can retain their force ( ro)ided the! do not re&udice the foru% state3s owers or rights) /attempts to explain why the forum state will apply the law of another forum state; does not address when it will do so0 2. (e!ted &i)ht! Theor# (Jose h 4eale) a. Co%it! 5rinci les were re&ected b! 4eale in fa)or of the $nglish doctrine of 6ested #ights b. 1ne set of rules that would deter%ine in an! case what law controlled regardless of where suit was brought c. Lex loci delicti7 a l! the law of the lace where the last bad act occurred d. 'trong territorial a roach7 rigidl! a l! the law of the lace where the last e)ents occurred e. 8d)antages i. 8rguabl! eas! to a l! (but so%eti%es the 9 lace of the tort: is difficult to deter%ine) ii. +he lex loci is the onl! geogra hic factor co%%on to both arties to the suit (but this was not true in Carroll) iii. ;eutral does not fa)or laintiffs or defendants. whereas a l!ing the law of the foru% would fa)or laintiffs and encourage foru% sho ing i). 5redictable suits will be resol)ed the sa%e wa! regardless of where the litigation is brought (predictability and uniformity!) f. <isad)antages i. =nfair the rigidit! of the theor! was i% ractical and unbearable ii. Lac*ed )alues of fle(ibilit! and co%%on sense resulting in arbitrar! and dis arate treat%ent iii. For defa%ation and other intentional torts. it is ossible for tortfeasor to select the state in which to co%%it the tort with an e!e to otential liabilit! 9foru% sho ing: b! otential defendant ". lace of Wron) *Tort!+ (+erritorial 8 roach) 1

E.

Conflicts of Laws Friedenthal Fall 2008 a. &"le: the ca"!e of action ari!e! "nder the law! of the !tate where the la!t act occ"rred. 8laba%a >reat 'outhern #.#. Co. ). Carroll (8la. 18?2) (5 e% lo!ee and < e% lo!er were residents of 8laba%a@ < incor orated in 8laba%a@ 5 in&ured in Aississi i. but the cause of the in&ur! was a fault! train ins ection that occurred in 8laba%a@ court held because injury occurred in Mississippi, rights vested there and Mississippi law applied@ Aississi i fellow ser)ant rule barred reco)er!) i. #e%e%ber7 without in&ur!. there is no tort (e( laining wh! 9bad act: rule should not a l!) ii. +he results see% unfair 1) 8laba%a could change its wor*ers co% ensation law to e( ressl! a l! to 8laba%a e% lo!ees regardless of location of in&ur! 2) 8lternati)e factors7 do%icile. state interests. lace of bad conduct. better law. foru% law iii. #eflects contrar! goals of conflicts7 1) 8 licable law should be selected fairly e)en if the ulti%ate a lication see%s un&ust 2) 8 lication of the selected law should attain material or substantive justice rather than focusing on fair selection b. +erritorialit! and 6ested #ights7 +he First #estate%ent (1?"8) i. , - ;o state can %a*e a law. which b! its own force is o erati)e in another state. ii. , .// +he lace of the wrong is in the state where the last e)ent necessar! to %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 has sustained a legal in&ur!. i). , .01 Bf a cause of action in tort is recogniCed in the lace of the wrong. a cause of action will be recogniCed in other states. Bf no cause of action is created in the lace of the wrong. no reco)er! in tort can be had in an! other state. ). , .02 +he law of the lace of the wrong deter%ines whether a %aster is liable in tort to a ser)ant for a wrong caused b! a fellow ser)ant. )i. E3CE TIO4: if there is a standard of care in the state where !ou act. and !ou act 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. 1ther lace of in&ur! rules i. Drongful death7 last act is where the fatal blow was deli)ered ii. Libel case7 last act is where the libel was co%%unication (but action %ust be brought in one state onl!) lace of Contractin) *Territorial Approach+ a. &"le: the 5alidit# of a contract i! to 6e deter7ined 6# the law of the !tate in which the contract wa! 7ade8 if it i! 5alid there then it i! 5alid e5er#where and an action on the contract will 6e !"!tained e5en in the co"rt! of a !tate who!e law doe! not per7it !"ch a contract. Ailli*en ). 5ratt (Aass. 18F8) (5 in Aaine sold goods on credit to < in Aass@ <3s wife guaranteed a!%ent@ 5 brought suit in Aass to collect on contract@ < defended that %arried wo%en could not contract in Aass e)en though allowed to contract in Aaine@ court held contract entered into in Maine by goods being shipped and Maine law applies@ 5 could reco)er) b. &"le: the law of the place where perfor7ance i! *to 6e+ carried o"t )o5ern! !"it! ari!in) o"t of nat"re and !"fficienc# of perfor7ance c. &"le *&e!tate7ent+: for"7 law applie! to the deter7ination of where the contract wa! 7ade8 once the deter7ination i! 7ade9 the law of the place of contract applie! to the !"6!tanti5e 7erit! of the !"it 2

Conflicts of Laws Friedenthal Fall 2008 i. ;ote7 this rule does not reall! sol)e the roble% because the foru%,law deter%ination of where the contract was %ade essentiall! swallows u the second in2uir! of whose substanti)e law a lies ii. #estate%ent also includes rules that describe when a contract is %ade u on acce tance (acce tance where %ailed. acce tance where s o*en into the tele hone. etc.) G. Sit"! of ropert# a. B%%o)able ro ert! i. Lex Rei Sitae: appl# the law of the !tate where the i77o5a6le i! located ii. &e!tate7ent re:"ire! application of the ;whole law< of the place where the i77o5a6le i! !it"ated 1) , =>0 Dhether a thing is %o)eable or i%%o)able is deter%ined according to the law of the situs of the thing 2) B%%o)able ro ert! usuall! includes the land and buildings attached thereto ") +his is one of the few areas of law where renvoi a lies al%ost uni)ersall! (courts loo* to the 9whole law: of the state where the i%%o)eable is located) iii. 'itus state has e(clusi)e de &ure and de fact ower o)er land situated within its borders (e.g.. le)!ing ro ert! ta(es) i). Certaint#9 con5enience9 and clarit# of title are uni)ersall! shared ob&ecti)es of the law of ro ert! and cannot be acco% lished if land in one state is sub&ect to di)erse and otentiall! conflicting laws (assure integrit! of the recording s!ste% and unifor%it! of result). Bn re 4arrie3s $state (Bowa 1?E?) (Bllinois wo%an e(ecuted a will de)ising land in Bowa to a church@ before she died. she wrote 9)oid: all o)er the will@ Bllinois law would ha)e held the will )oided@ Iowa held the will was not voided because witnesses were required for revocation) 1) Full faith and credit does not a l! to &udg%ents of robate as to i%%o)able real ro ert! 2) 'u le%entar! robate is re2uired to address land located in another state ). +he situs state has the strongest interest in regulating land situated within its border )i. 'itus rule is eas! to a l! and hard to %ani ulate because whether a thing is i%%o)eable and where it is located are usuall! clear b. Ao)eable ro ert! 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( transactions 2) +wo,ste in2uir! re2uired7 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 of decedent?! do7icile at ti7e of death 1) Bncludes in)est%ents and ban* accounts 2) ote! domicile rule consolidates probate and gets full faith and credit in all other states H. Do7icile a. &"le: !tate of do7icile at death i! the law that control! pro6ate b. <o%icile retained until7 i. 5h!sical tra)el to new do%icile@ and ii. Aanifested intent to sta!. Dhite ). +enant (D. 6a. 1888) (fa%il! far% e(tends o)er D6 and 58 borders@ decedent ro%ised to li)e in s%aller house on 58 "

Conflicts of Laws Friedenthal Fall 2008 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 58 house and li)estoc*@ court held that decedent changed his domicile and "# law controlled probate) c. B% ortance of do%icile in #estate%ent i. Aarried wo%en used to be rohibited fro% ha)ing se arate do%icile fro% husbands ii. 8n indi)iduals can alwa!s be sued at his or her do%icile iii. <o%icile is no longer re2uired for all rules (e.g.. child attending ublic school in lace other than do%icile) i). 8n indi)idual can be rosecuted onl! where he or she co%%its a cri%e F. Mi!cellaneo"! Traditional &"le! a. Aarriage i. Fir!t &e!tate7ent , -=- &"le: 5alidit# of 7arria)e i! )o5erned 6# the law of the place where the pro7i!e! were e@chan)ed 1) 4ut status of %arriage is go)erned b! the do%icile of the arties 2) 1?12 =nifor% Aarriage $)asion 8ct atte% ted to discourage eo le fro% sho ing states with %ore er%issi)e %arriage laws b! rohibiting the recognition of foreign %arriages where the! conflicted with the do%icile state3s laws (onl! ado ted b! fi)e states) ") 5articularl! rele)ant for sa%e,se( %arriages b. Legiti%ac! at childbirth i. Fir!t &e!tate7ent , -.0 &"le: deter7ined 6# the law of the !tate in which the parent who!e relation!hip i! in i!!"e wa! do7iciled when the child wa! 6orn 1) 8 subse2uent act could legiti%atiCe the child@ to be deter%ined b! the law of the state of do%icile (at the ti%e of the act) of the acting arent ii. C"!tod# of le)iti7ate children at 6irth deter7ined 6# law of !tate where father wa! do7iciled 1) <o%icile of child after birth %a! change right to custod! and will )est new state with rights to re%o)e the child fro% an unfit guardian iii. 'econd #estate%ent dro s custod! issue all together C. Traditional ractice: E!cape De5ice! 1. roce!! of Anal#!i! a. Co% onents of traditional rules i. Legal categor! (e.g.. tort. contract. ro ert!) ii. 8 licable law iii. Factor which 9connects: the legal categor! with the state that su lies the a licable law b. $% lo!ing the rule (each ste offers o ortunities for esca e or %ani ulation) i. CharacteriAe: deter%ine which rule is a licable to a roble% b! fitting it into a legal categor! ii. LocaliAe the connectin) factor: deter%ine where the tort or contract occurred. or the situs of the ro ert! iii. A!certain the content of the law of the state in which the connecting factor was located to deter%ine how %uch of that law is a licable to the case and which. if an!. defenses are a)ailable 2. CharacteriAation a. >eneral rules for characteriCation i. #estate%ent does not ro)ide guidance on characteriCation ii. For"7 co"rt "!"all# decide! how to characteriAe a clai7 1) Courts usuall! consider rules that %a*e sense for laintiffs and the rinci le of certaint! E

Conflicts of Laws Friedenthal Fall 2008 2) 4ut so%eti%es characteriCation can be seen as %ani ulation b! the court to get a referred result on the %erits. Le)! ). <aniels3 =,<ri)e 8uto #enting Co. (Conn. 1?28) (5 was a assenger in a car rented fro% < in Conn.@ 5 and the dri)er get into an accident in Aass.@ if Aass. law a lies. 5 cannot sue the rental car co% an! (onl! the dri)er)@ if Conn. law a lies. the rental car co% an! is liable for all in&uries@ court held this was a contract rather than torts case and $onn% law applies because the rental contract was made in $onn%@ court loo*ed at olic! behind Conn. law highwa! safet!) iii. &"le: the law of the do7icile !tate applie! in deter7inin) an# i!!"e of incapacit# to !"e 6a!ed on fa7ilial relation!hip. Iau%schild ). Continential Cas. Co. (Disc. 1?G?) (wife sued husband in Disconsin (their do%icile) for a California car accident@ Disconsin allowed s ouses to sue each other but C8 did not@ court held this was a domestic matters issue rather than tort issue and the law of the domicile controls domestic relations@ thus wife could sue under Disconsin law@ court also loo*ed at olic! behind inters ousal i%%unit! reser)ation of %arital har%on! and a)oidance of insurance fraud) 1) #en)oi if Disconsin a lied C8 9whole law:. C8 would ha)e loo*ed bac* to Disconsin under its conflicts rules 2) <e ecage Disconsin se arated issues of the case and a lied different substanti)e law rules to each issue i). CharacteriCation is an acce table tool if used to ensure sound decisions based on logic and olic! 1) CharacteriCation is a %ethod for a)oiding the nonsensical results of a l!ing rigid and redictable rules 2) 4ut if we use characteriCation to circu%)ent the conse2uences of rigid rules. wh! don3t we &ust openly loo* to olic! and logic to get our desired result? ". S"6!tance or roced"re a. &"le: the for"7 will appl# for"7 law with re!pect to proced"re i. Bt can be hel ful to loo* to the purpose of the law to deter%ine whether it is rocedural or substanti)e7 1) <oes the rule guide hu%an conduct and create incenti)es or liabilities (substanti)e)? 2) <oes the rule ser)e to create the efficient resentation of e)idence ( rocedural)? b. 8d)antages i. Facilitates &udicial ad%inistration ii. $stablishes redictabilit! and %eets e( ectations for laintiffs when the! select a foru% iii. $nables the arties to hire attorne!s fa%iliar with court rocedure c. Bt can be difficult. howe)er. to distinguish between substance and rocedure. &e!tate7ent li!t! proced"ral !"6Bect!: i. Dhich court(s) can entertain the action ii. For% of the action iii. Dho %a! and who %ust be sued i). Aethods of ser)ing rocess ). Aethods of securing obedience to the court )i. Dhen the action begins )ii. Dhether an issue of fact will be tried b! the court or &ur! )iii. 5roof in court of facts alleged as well as resu% tions and inferences to be drawn fro% e)idence i(. Co% etenc! and credibilit! of witnesses G

Conflicts of Laws Friedenthal Fall 2008 (. 8d%issibilit! of e)idence (i. 8ccess to the courts (ii. Statute of frauds. Aarie ). >arrison (;J 188") (5 sued in ;J for breach of oral contract %ade in Aissouri@ < argued that statute of frauds a lied and the contract was unenforceable@ ordinaril!. Aissouri law would a l! to a contract entered into there@ Aissouri law would ha)e in)alidated the contract under statute of frauds@ court held that Missouri statute of frauds was procedural only and did not apply to suit in & court, and & substantive law applied to void the contract on substantive terms) 1) 'tatute of frauds is rocedural because it is an e)identiar! rule $nsures that arties are aware the! are entering into a contract $nsures clarit! of the ter%s of the contract 1ral contracts are too difficult to ro)e (iii. Statutes of limitations 1) 'tatute of li%itations ser)es both substanti)e and rocedural ur oses 5rocedural7 rotects courts with li%ited resources fro% stale clai%s 'ubstanti)e7 rotects defendants 2) $(ce tions to statute of li%itations as rocedural Cause of action and substance are so intertwined that the statute of li%itations is substanti)e (usuall! when a cause of action is created b! statute) (cf. when a cause of action in a statute is go)erned b! a general statute of li%itations for torts) 4orrowing statutes7 statutes that dictated that statute of li%itations of &urisdictions fro% which substanti)e law was borrowed would a l! (usuall! ado ted shorter statute of li%itations between foru% and other &urisdiction fro% which substanti)e law was borrowed) ") 4ournais ). 8tlantic Aariti%e Co.. Ltd. (5 brought suit under 5ana%a Labor Code e)en though the statute of li%itations in that law had alread! assed@ 5 relied on longer statute of li%itations in a federal statute@ court held statute of limitations was procedural so longer federal statute of limitations) E) -eeton ). Iustler AagaCine. Bnc. (;I 1?88) (;J laintiff filed action for libel and slander against 1IKC8 defendant@ ;I was the onl! state where the action wasn3t ti%e,barred@ court applied its own statute of limitations because it was considered procedural and ' has no borrowing statute) (i). Limits on recovery. -ilberg ). ;ortheast 8irlines. Bnc. (;J 1?H1) (;J %an bought lane tic*et in ;J@ lane crashed in Aass.@ Aass. law would a l! to the substanti)e clai% because it was the lace of the tort. but Aass. law li%ited reco)er! to L1G.000@ court applied & law to recovery issue (no limit on recovery) based on (a) public policy, and (b) holding that remedial laws are procedural) d. Co77on proced"re 5. !"6!tance i!!"e! i. Ca s on da%ages ii. 'ur)i)orshi of clai%s. >rant ). Ac8uliffe (Cal. 1?G") (5s and <. all C8 residents. were in a car accident in 8M@ 5s brought suit in C8 and < died after suit was brought@ C8 had sur)i)al statute that allowed suit to roceed against e(ecutor of the estate@ 8M did not allow suit to roceed@ court held that even though #* substantive law applies to the tort claim (place of wrong), $# survival statute applies because it is procedural relating to the enforcement of legal claims for damages and the suit may proceed@ 8M rule was intended to H

Conflicts of Laws Friedenthal Fall 2008 rotect innocent widows and children of < who is a C8 resident here@ cf. wrongful death statutes which create a cause of action to rotect the widows and children of 5) iii. 'tatute of frauds i). 'tatute of li%itations (usuall! rocedural) ). #ight to &ur! trial 1) 5rocedural? Bt is art of how the court o erates@ eo le choose foru% based on a)ailabilit! of a &ur!. 2) 'ubstanti)e? Bt is a constitutional right. but is it %erel! a rocedural right? +he 'e)enth 8%end%ent does not a l! to the states robabl! because it is considered rocedural. )i. Nuestions of law )ersus 2uestions of fact (usuall! rocedural) 1) $.g.. in %ost states the 2uestion of whether a contract e(ists is a 2uestion of fact for the &ur!. but in so%e states. in the absence of credibilit! issues. it is a legal 2uestion for the &udge. )ii. #ules of e)idence )iii. 4urden of roof 1) Bf a law is ado ted for conflicts ur oses. should the standard of roof be ado ted as well? i(. <irect action statutes 1) 'o%e states allow direct action b! laintiffs against insurance co% anies where the insurance co% anies %a! be liable if the insured is res onsibleKdefendant 2) +hese statutes usuall! hel laintiff significantl! because &uries see dee oc*ets as o osed to indi)idual defendants who %a! be &udg%ent, roof ") 5rocedural or substanti)e? 8ccident occurs in direct action statute state 'uit is brought in neighboring state without a direct action statute < %o)es to dis%iss Bs the direct action statute art of the substance of the case? E) Bf it is substanti)e. is it classified as tort or contract?

E. &en5oi
a. &"le: a !tate adhere! to ren5oi doctrine where it! conflict law dictate! that it appl# the ;whole law< *incl"din) the conflict! law+ of another !tate b. 1nce the foru% ('tate 8) decides to loo* at the 9whole law: of another state ('tate 4). there are three ossible results7 i. Conflicts law of 'tate 4 %a! refer the %atter to 'tate 43s own internal law. +he substanti)e law of 'tate 4 is a lied and the %atter ends. ii. Conflicts law of 'tate 4 %a! refer the %atter bac* to the foru% state (9re%ission:). 1) Dhile. in theor!. this could result in a ne)er,ending circle. in ractice the foru% will acce t the reference bac* and a l! its own law. Bn re 'chneider3s $state (;J) ('chneider died do%iciled in ;J but owned real ro ert! in 'witCerland@ his estate sold the ro ert! and the cash had to be distributed and ro ert! rights established@ 'chneider3s will set out certain distribution contrar! to the laws of 'witCerland regarding inheritance of land@ court loo+ed to ,whole law- of situs (,accepting the renvoi-) and .wiss conflicts law loo+ed to the law of the domicile so & substantive probate law applied) iii. Conflicts law of 'tate 4 %a! refer the %atter to the law of a third state ('tate C) (9trans%ission:). F

Conflicts of Laws Friedenthal Fall 2008 1) Bf the trans%ission is to the 9whole law: of 'tate C (loo* to 'tate 43s conflicts law). continue to loo* to the conflicts law of the state(s) referred until there is a reference to substanti)e law. 2) Bf the trans%ission is to the substanti)e law of 'tate C. then 'tate C3s law a lies and the %atter ends. c. Dhen does ren)oi a l!? i. Foru% decides when to a l! ren)oi ii. Fir!t &e!tate7ent: ren)oi onl! a lies to 1) B%%o)able ro ert! (a l! 9whole law: of situs). 2) <i)orce iii. Second &e!tate7ent: ren)oi a lies when 1) =nifor%it! of result is at a re%iu% 2) Dhen )irtuall! all states agree that a articular state3s law should a l! G. E@ception! to Traditional Conflict &"le! a. 5ublic 5olic! i. &"le: the p"6lic polic# e@ception i! e@tre7el# li7ited and !ho"ld 6e con!idered onl# after deter7inin) the applica6le law8 it !ho"ld 6e "!ed onl# to repel o6no@io"! forei)n law! rather than B"!tif#in) the applica6le for"7 law 1) +here is no real standard to a l! 2) <efeats the goal of choice of law rinci les to create redictabilit! and consistenc! ii. &"le: a tort co77itted in one !tate create! a ri)ht of action in another !tate "nle!! p"6lic polic# for6id! it. Louc*s ). 'tandard 1il Co. of ;J (;J 1?18) (;J resident *illed in auto accident in Aass.@ Aass. li%ited liabilit! da%ages@ court held that the Mass% law, though considered penal rather than remedial, could be applied in & because a & resident may vindicate his rights under a foreign statute so long as it is not against public policy)@ Cf. -ilberg (Aass. li%it on da%ages were against ;J ublic olic! because the & $onstitution specifically rejected limits on damages for wrongful death and plaintiff would not have been fully compensated under Mass% law@ in Louc*s. defendants argued against da%ages entirel!. so an! reco)er! was hel ful for laintiff) iii. &"le: when otherwi!e applica6le forei)n law wo"ld 5iolate !o7e f"nda7ental principle of B"!tice9 !o7e pre5alent conception of )ood 7oral!9 or !o7e deep%rooted tradition of co77on wealth9 then the co"rt 7a# ref"!e to enforce it. AertC ). AertC (;J) (;J Dife sued ;J husband for accident that occurred in Conn.. which allowed suits between s ouses@ court held that applying $onn% law would violate &/s public policy of not allowing suits between spouses)@ Cf. IolCer ). <uetsche #eichsbahn,>esellschaft (;J) (>er%an national sued >er%an co% an! for breach of e% lo!%ent contract@ co% an! relied on defense that anti,'e%itic >er%an law in)alidated laintiff3s contract@ court held that it was not against public policy to allow the defense based on a discriminatory law) 1) +here is a funda%ental difference between clai%ing a ublic olic! e(ce tion to rohibit a lawsuit (AertC) and clai%ing a ublic olic! e(ce tion to rohibit a art! fro% defending a lawsuit (IolCer) 2) +here is no har% in finding ublic olic! reasoning for e(cluding a clai% in that foru%@ the laintiff can sue elsewhere ") 4ut ublic olic! cannot fairl! reclude a defense because the defendant will lose on that basis b. 5enal Laws 8

II.

Conflicts of Laws Friedenthal Fall 2008 i. State! will not enforce the penal law! of other !tate! 1) +here is a s ecific tie to the &urisdiction 2) Cri%inal laws are difficult to enforce. es eciall! 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%%itted ii. 1ther indications that a law %a! be enal (and thus won3t be a lied in another state)7 1) +he go)ern%ent sues to )indicate a ublic right. es eciall! when the re%ed! is a enalt! 2) +he go)ern%ent benefits in so%e wa! ( enalt! or fine) e)en if not brining the suit ") 5ri)ate suit brought for the ublic good where the laintiff *ee s so%e of the collected enalt! (e.g.. citiCen suit statutor! ro)isions rewarding ri)ate citiCens for bring suit in en)iron%ental cleanu cases) E) 5uniti)e da%ages are not enal iii. &"le: a forei)n !tat"e that i! penal in !o7e !en!e i! not nece!!aril# penal for all p"rpo!e!. Louc*s ). 'tandard 1il Co. of ;J (;J 1?18) (to be enal. a law %ust not grant re aration to one aggrie)ed. but %ust instead )indicate ublic &ustice@ court held that Mass% law was classified as penal but should not be considered such here because it was not against & public policy) c. +a( Laws i. Traditional r"le wa! that !tate! will not enforce the re5en"e law! of other !tate! 1) +here is reluctance to in2uire into another s!ste%3s ta( law 2) 8 state ris*s offending another &urisdiction b! refusing to a l! the law ii. 8l%ost all states ha)e since assed statutes for co% le%entar! recognition of ta( law iii. S"pre7e Co"rt ha! !aid that one !tate cannot ref"!e to honor the B"d)7ent of another !tate with re!pect to the collection of ta@e! D. leadin) and ro5in) Forei)n Law 1. &"le: the law of a forei)n co"ntr# i! a fact that 7"!t 6e pro5ed. Dalton ). 8rab 8%erican 1il Co. (2d Cir. 1?GH) (8r*ansas citiCen was hurt in car accident with ;J dri)er in 'audi 8rabia and sued in ;J@ dri)er was an e% lo!ee of a <elaware cor oration@ neither art! led a lication of 'audi 8rabian law of res ondeat su erior@ laintiff argued this did not ha)e to be ro)ed because it was a basic and uni)ersal tort rule that %ust ha)e been art of 'audi 8rabian law@ court required plaintiff to prove .audi #rabian law in order for judicial notice to be ta+en and because plaintiff did not do so, & law applied and the burden of proof on the respondeat superior issue fell on the plaintiff) 2. +a*ing &udicial notice of foreign law7 a. #e2uest the arties to sub%it e)idence b. Consult with an e( ert or e( ert %aterials ". Courts often ta*e &udicial notice of the laws of another state when that other state3s law a lies Modern Approache! to Choice of Law A. ro6le7! with the Traditional Approach 1. Iigh rice for confor%it! and redictabilit! 2. #ationalit! and logic did not alwa!s re)ail ". +raditional rules could not alwa!s sol)e increasingl! co% le( conflicts E. 5roble%s with characteriCation B. Stat"tor# Sol"tion! 1. 'eneral &"le: !tat"tor# r"le! on choice of law )enerall# fa5or! part# a"tono7# ?

2. ". E.

G. H.

Conflicts of Laws Friedenthal Fall 2008 'tatutes for s ecific legal act (e.g.. statutes %a*ing hologra hic wills )alid in other states if it is )alid in the state it was %ade) =nifor% Co%%ercial Code (the law that the arties select controls) Borrowin) !tat"te! a. 8 lication of foreign law will %ean that the foru% borrows the foreign statute of li%itations as well b. 'o%e &urisdictions li%it the rule of borrowing to foreign statutes of li%itations that are shorter than the foru% statute of li%itations c. 1ther &urisdictions borrow the statute of li%itations of the place where the tort occurred +olling ro)isions (statute of li%itations is tolled when the defendant lea)es the state) 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 directed at that i!!"e ii. Choice of law ro)isions will control e)en if the issue is not one which the arties could ha)e resol)ed b! including the ro)ision. unless7 1) +he chosen state has no substantial relationshi to the arties or transaction and there is no other reasonable basis for the choice. or 2) 8 lication of the chosen law would be contrar! to a funda%ental olic! of a state which has %ateriall! great interest that the chosen state iii. 8bsent a contrar! intention. the reference is to the local law of the state of the chosen law (no ren)oi) i). Bn order for a choice of law ro)ision to be )alid. (a) the arties %ust ha)e the ca acit! to choose the a licable law. (b) the! %ust ha)e consented to the choice. (c) there %ust ha)e been a %eeting of the %inds. and (d) it %ust ha)e been done in ro er for%. The followin) law! may be used to deter7ine 5alidit#: 1) +he law of the foru% 2) +he law that would ha)e been a licable if the choice of law ro)ision was 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 contract 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 ro)ision contained in a stea%shi tic*et %ade the tic*et a contract of adhesion) 1) Contractual ter%s cannot select law in order to e)ade the olic! of rohibiting 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 acce ted within certain limitations as long as the arties are able to %a*e that choice and include it in the contract 4ut if the ter%s are those which arties usuall! cannot go)ern. the arties3 intent controls the a licable law with e(ce tions 0xceptions7 a. Law chosen %ust ha)e a substantial relationshi to arties to the transaction within a reasonable basis

10

Conflicts of Laws Friedenthal Fall 2008 b. Chosen law will not go)ern if it is funda%entall! against ublic olic! of the law that would otherwise go)ern had a choice not been %ade c. Chosen law will not go)ern if contract of adhesion are against the olic! of the foru% d. #ule of 6alidation ( arties cannot select controlling law that would in)alidate the contract) ii. The partie! intended the contract to 6e perfor7ed !o7ewhere el!e. 5ritchard ). ;orton (Louisiana citiCen signed a eal bond in a Louisiana ci)il case in ;J@ case lost on a eal@ citiCen3s insurers argued that the a eal bond was in)alid in ;J for lac* of consideration and therefore he didn3t ha)e to a!@ court held Louisiana law applies because the parties intended for the contract to be performed in Louisiana where it was valid) F. ropert#C D!att ). Fulrath (' anish cou le hid assets in ;J during ' anish Ci)il Dar@ the! signed an agree%ent to let ;J sur)i)orshi law control the assets@ ' anish law would ha)e %ade the ro ert! &oin e)en after the death of one s ouse@ court held that & law applied because & public policy asserted control over property within its jurisdiction @ dissent argued that traditional rule of law of %arital do%icile should ha)e a lied) 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 contract ii. +his rule o)errules 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!! or clearl# i7plied intent of the !ettlor !ho"ld control a6!ent an# !tron) for"7 polic# to the contrar#. 'hannon ). Br)ing +rust Co. (;J settlor established an irre)ocable inter )i)os trust in ;J but directed that ;J law should control@ court affirmed that 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 rather the law of the place with an intere!t in the 7arital !tat"!. $state of Crichton (husband died in ;J where he and his wife were %arried and do%iciled@ he left %ost of his ro ert!. in Louisiana. to his children@ wife brought suit in L8 under co%%unit! ro ert! rules@ court held & law applied because it had the only interest as the marital domicile). $state of Clar* (court a lied law of 68 as %arital do%icile e)en though estate e(isted in ;J ban* and will s ecified that ;J law should a l!) i. 4ut see $state of #enard (wo%an who li)ed in ;J for "0 !ears died do%iciled in France@ court upheld her selection of & law to control the descent of her estate 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 theoriCed that traditional rules. though intended to create unifor%it! and certaint!. did not create results based on olic!. statutor! ur ose. logic. or rationale b. $.g.. Ailli*en ). 5ratt (court relied on traditional rule that the law of the lace where the contract was %ade controlled@ therefore. the contract was )alid because it was entered into in Aaine e)en though Aassachusetts law rohibited wi)es fro% contracting inde endentl! of their husbands) i. De should instead e)aluate the a licable law based on statutor! ur ose7 1) Aassachusetts3s rohibiti)e law was intended to rotect Aassachusetts wo%en@ Aaine3s er%issi)e law was intended to a l! to Aaine wo%en 11

Conflicts of Laws Friedenthal Fall 2008 2) 4ecause the wo%an here was fro% Aassachusetts. Massachusetts had a strong interest in applying its law to this case ii. +he lace of contracting rule is %eaningless co% ared to where the arties are fro% and the interests of those &urisdictions c. 8 court faced with a clai% based on a set of facts should loo* at the law. deter%ine the ur ose. inter ret the law. and then deter%ine which law should a l! out of %an! laws that %a! a ear to be conflicting i. Bntentionalis%7 what is the intent of the law? ii. +e(tualis%7 what is the sco e of the law according to its te(t? iii. Aoral B% erati)e7 what should the law %ean? d. 8 state3s interest is the roduct of7 i. >o)ern%ent olic!@ and ii. +he concurrent e(istence of an a ro riate relationshi between the state ha)ing the olic! and the transaction. the arties. or the litigation 2. Intere!t Anal#!i! roce!! a. 8 l! the law of the foru% unless otherwise re2uested b. Bf foreign law is re2uested. the court should loo* to the olicies behind the res ecti)e laws and deter%ine whether one state or both ha)e an interest in a l!ing their law c. Bf onl! one state has an interest. this is a false conflict and the law of the interested state should a l! d. Bf both states ha)e an interest. this is a true conflict7 i. Balance the intere!t!: i! one !tate 7ore intere!tedC ii. If 6oth !tate! are e:"all# intere!ted9 appl# for"7 law 1) +his encourages foru% sho ing 2) Bt will also create different results de ending on where the case is brought e. Bf neither state has an interest. a l! foru% law ". Identif#in) Fal!e Conflict! a. False Conflict: when two or 7ore !tate! are in5ol5ed in the di!p"te and onl# one i! ;intere!ted< in ha5in) it! law applied b. Conflicts within the sa%e &urisdiction i. Chesne! ). Aare* (ci)il rights statute allows re)ailing laintiff to reco)er attorne!3s fees and costs@ defendant %ade settle%ent offer under F#C5 H8@ laintiff re&ected offer and won. but his award was less favorable than the settle%ent offer@ defendant argued that F#C5 H8 controlled o)er the ci)il rights statute and laintiff was not entitled to reco)er attorne!3s fees@ court held civil rights statute controlled because it entails a substantive right) ii. Aare* ). Chesne! (sa%e case on a eal@ court held that 34$" 56 policy of promoting and encouraging settlements applies across the board, even in civil rights cases@ laintiff 9lost: because the ulti%ate award was less fa)orable than the settle%ent offer. so he was not entitled to attorne!3s fees@ this result demonstrates reconciliation between the two conflicting rules so that it can be considered a ,false conflict-) c. >uest statutes i. +oo*er ). Lo eC (car accident in Aichigan@ car was dri)en b! ;J defendant and registered there@ one laintiff was fro% ;J and the other fro% Aichigan@ traditional tort rule lace of wrong would a l! Aichigan3s guest statute to bar assengers fro% suing the dri)er for negligence) 1) Aichigan3s interest (guest statute)7 "urpose of Aichigan guest statute was to rotect insurance co% anies fro% fraud

12

Conflicts of Laws Friedenthal Fall 2008 4ut the car here was registered in ;J and insured b! a ;J co% an!@ the Aichigan statute was not intended to rotect ;J insurers 2) ;ew Jor*3s interest (no guest statute)7 ;J had a olic! not of rotecting insurance co% anies. but of allowing ;J citiCens to collect against negligent dri)ers For the sa%e reason (no rotection for ;J insurers). the Aichigan laintiff should also be able to reco)er against the ;J dri)er@ residence of the plaintiff shouldn/t matter ") +his is a false conflict both states3 olicies would allow the laintiffs to collect E) ;ote7 Bf the guest statute was switched (sa%e facts. but ;J has the guest statute law). there would be an actual conflictO ;J would want to rotect its insurance co% anies (no reco)er!) Aichigan would want to rotect the Aichigan assenger in the accident (reco)er!) Currie sa!s forum law would a l!O d. Lo!!%allocation 5er!"! cond"ct%re)"latin) r"le! i. Conduct,regulating rules o erate territoriall! (rules are tied to the lace of in&ur!) ii. Loss,allocating rules in)ol)e the relationshi of the art! (rules follow the erson) iii. ;ew Jor* +heor! (lo!!%allocatin) r"le!). ;eu%ier ). -uehner &"le! (;J 1?F2)7 1) Dhen a assenger and dri)er are fro% the sa%e state and the car is insured there. the law of that state will a l! regardless of where the injury occurred 2) Dhen the accident occurs in a state with a guest statute and the dri)er is do%iciled there. that state3s law should a l! (no liabilit! under the law of the )icti%3s state) ") Dhen the accident occurs in a state where the state er%its reco)er!. the guest %a! reco)er and a defendant cannot assert his own state3s guest statute as a defense (guest statutes are loss,allocating and the law of the do%icile a lies when loss,allocating rules are at issue) E) Dhen the guest and the dri)er are fro% different states. the law of the state where the accident occurred will a l! unless the following is shown7 <is lace%ent of the law will ad)ance rele)ant substanti)e law ur oses Dithout i% airing the s%ooth wor*ing of the %ulti,state s!ste% or roducing great uncertaint! for litigants i). 'chultC ). 4o! 'couts of 8%erica (;J laintiffs accused ;J defendant and his 1I Franciscan 1rder of %olestation@ %olestation too* lace in ;J and laintiff3s suicide too* lace in ;J@ ;J law ro)ides i%%unit! for charitable organiCations@ ;J law does not ro)ide charitable i%%unit!) 1) ;ew Jerse!3s interest (charitable i%%unit!)7 5rotect and su ort charitable organiCations (loss,allocating rule) Dhere rules are loss,allocating. the state3s interest and the art!3s reliance on those rules are less i% ortant 2) ;ew Jor*3s interest (no charitable i%%unit!)7 <eter tortious beha)ior in ;ew Jor* (conduct,regulating rule) Dhere rules are conduct,regulating. the lace of tort will usuall! ha)e a redo%inant or e(clusi)e concern 1"

Conflicts of Laws Friedenthal Fall 2008 ") Court held that the ;J conduct,regulating interest is wea+ in this case because the ri%ar! issue in this case is loss2allocation E) +he court a lied ;J law and dis%issed the suit@ a change in the law is 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 B"ri!diction where the tort occ"rred will )enerall# appl#8 if lo!!%allocatin) r"le! are at i!!"e9 other factor! 7"!t 6e con!idered incl"ded the do7icile*!+ of the partie!. Coone! ). 1sgood Aachiner!. Bnc. (1sgood sold ;J %achine to Aissouri co% an!@ co% an!3s e% lo!ee Coone! is in&ured@ Coone! sued 1sgood in ;J and 1sgood sued e% lo!er for &oint and se)eral liabilit!@ Aissouri wor*er3s co% relie)ed e% lo!er of further liabilit!. but ;J law %ade e% lo!er liable for e)er! art of e% lo!ee3s reco)er!) 1) Aissouri3s interest7 5rotect indi)iduals fro% in&ur! on the &ob whether or not the! could collect in an ordinar! tort action (conduct,regulating rule?) 2) ;ew Jor*3s interest7 5rotect defendants b! re2uiring other liable indi)iduals to contribute (loss,allocation rule) ") Co% eting olicies7 5olic! of reco)er! b! in&ured e% lo!ee )ersus olic! of contribution Currie would sa! there is no conflict because the ;J olic! of contribution a lies to indi)iduals who would be initiall! liable. and 1sgood would not ha)e been initiall! liable in this case E) ;eu%eier 'econd #ule7 where the local law of each litigant3s do%icile fa)ors that art!. and the action is ending in one of those &urisdictions. the lace of the in&ur! go)erns Court held that Aissouri law a lies and 1sgood cannot see* contribution fro% the e% lo!er because the e% lo!er has alread! contributed (;J a lies 'econd #estate%ent %ost significant contacts) +his resolution co% orts with the arties3 reasonable expectations G) ;ote7 3riedenthal thin+s there should have been a setoff from what the plaintiff could collect from 7sgood E. The ;Dnpro5ided%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! 1regon dri)er@ wife wanted to sue for loss of consortiu%@ Dashington law onl! allowed a husband to sue for loss of consortiu%@ 1regon allowed either s ouse to sue@ under traditional rule. Dashington law lace of wrong would a l!) i. Dashington3s interest7 1) Dashington has no interest in rotecting an 1regon defendant fro% being liable to a wo%an for loss of consortiu% ii. 1regon3s interest7 1) 1regon has no interest in allowing a Dashington wo%an to collect fro% an 1regon defendant iii. Dashington wife would not be able to collect in Dashington because she would ha)e no right to collect on. 1regon does not ro)ide a right to relief either. since 1regon law onl! a lies to 1regon wi)es. i). +herefore. there is no right to relief under either state law and the case is dismissed b. I! othetical 1E

Conflicts of Laws Friedenthal Fall 2008 i. 1ntario laintiff in&ured in 1ntario while in a car with a ;J dri)er ii. 1ntario has a guest statute rohibiting laintiff fro% suing@ ;J does not ha)e a guest statute iii. +his is not an un ro)ided,for case@ this is a false conflict 1) 1ntario has no interest in rotecting a ;J dri)er 2) ;J has no interest in allowing an 1ntario laintiff to reco)er ") 4ut 1ntario does ha)e an interest in highwa! safet!. so apply 7ntario law without the guest statute G. &e!ol5in) Tr"e Conflict! a. 8rue $onflict7 a conflict in which %ore than one of the states in)ol)ed is interested in ha)ing its law a lied 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 California in e(change for ro%issor! notes@ Lilienthal had been declared a s endthrift in 1regon and all obligations were annulled@ laintiff sued in 1regon to collect on the notes@ traditional rule under interest analysis is that forum law applies when there is a true conflict) c. Aoderate and #estrained Bnter retation i. #pparent $onflict7 each state would be constitutionall! &ustified in asserting an interest but. on reflection. the conflict is a)oided b! a %oderate definition of the olic! or interest of one state or the other (reasonable %en %a! disagree on whether a conflicting interest should be asserted) ii. $( and the false conflict scenario and restrain one state3s olic! through realistic a lication iii. 4ern*rant ). Fowler (Cal. 1?H1) (;6 laintiffs %ade a real estate deal with ;6 decedent in e(change for a ro%ise that decedent would forgi)e certain debts in his will@ decedent died in C8 without fulfilling ro%ise@ C8 law in)alidated the oral ro%ise on statute of frauds@ ;6 would ha)e enforced the oral ro%ise@ court held that entire transaction occurred in 9 and $#/s interest was wea+ in comparison; even though $# has an interested in its domiciles, the court too+ a restrained approach limiting $#/s interest; the court did not balance the state interests) d. Co% arati)e B% air%ent and 5olic!,'electing #ules i. :o not weigh or balance the interests of each &urisdiction@ %a*e a decision based on an inde endent rinci le 1) Loo* at the interest of the states in)ol)ed 2) <eter%ine which &urisdiction3s olic! would be %ost i% aired if it were not a lied ii. &"le: once a preli7inar# anal#!i! ha! identified a tr"e conflict9 the ;co7parati5e i7pair7ent< approach !ho"ld 6e "!ed to deter7ine which !tate?! intere!t wo"ld 6e 7ore i7paired if it! polic# were !"6ordinated to that of the other !tate. 4ernhard ). Iarrah3s Club (Cal. 1?FH) (C8 residents were in an accident in C8@ laintiff sued Iarrah3s for luring C8 residents to drin* and ga%ble all night and then dri)e bac* to C8@ C8 has dra% sho liabilit!. but ;6 does not) 1) +raditional tort rule does not easil! a l! the accident occurred in California. but the 9bad act: occurred in ;e)ada 2) California3s olic!7 <ra% sho liabilit! is intended to rotect C8 dri)ers fro% in&ur! on C8 highwa!s 1G

E.

Conflicts of Laws Friedenthal Fall 2008 +his olic! would be se)erel! i% aired if C8 law did not a l! because the ur ose of the law would not be full! effected if it was not e(tended to all ta)erns that ad)ertise and solicit business in C8 ") ;e)ada3s olic! would not be )itiated b! a lication of C8 law because the ur ose of the law is not to protect bar*ee ers but rather to 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 pre5alent and pro)re!!i5e law *all other factor! 6ein) e:"al+. 1ffshore #ental Co. ). Continental 1il Co. (Cal. 1?F8) ( laintiff sent e% lo!ee to Louisiana and e% lo!ee was in&ured there@ laintiff sued under an old C8 law allowing an e% lo!er to reco)er if its e% lo!ee3s in&ur! re)ented the e% lo!er fro% carr!ing out its business@ L8 had a related law that was %ore narrow and did not allow reco)er!@ court applied L# law because it was more current and viable, and because L#/s interest in attracting business would be more impaired by the application of $# law, while $# had no strong impairment because it rarely applied its law anyway) i). Bnternal )ersus e(ternal go)ern%ent ob&ecti)es 1) Bnternal ob&ecti)es underlie a state3s resolution of conflicting ri)ate interests in wholl! do%estic cases 2) $(ternal ob&ecti)es are the ob&ecti)es of each state to %a*e its law a l! to ersons to who% it owes a res onsibilit! e. 5rinci les of 5reference (creating a set of rules to a l!) i. +he law of the state of in&ur! should a l! if it is %ore rotecti)e of laintiffs than the law of the state in which the defendant resides or acted ii. +he law of the state where defendant acted should a l! if it is less rotecti)e than the law of the laintiff3s ho%e state. f. #eturn to $( ectations of +erritorialit! i. Ci olla ). 'ha os*a (5enn. 1?F0) (58 laintiff and <$ defendant are both students in <$ where accident occurred@ laintiff sued in 58 because <$ has a guest statute@ court applied :0 law with the guest statute by loo+ing at the expectations of the parties ; :elaware driver would expect :elaware law to apply as would a plaintiff coming into :elaware) 1) Court also found that guest statutes are loss2allocating rules 2) <issent found that the interests of both states were e)enl! balanced and would ha)e a lied the 9better law: which the dissent ercei)ed to be 58 law lace of the Mo!t Si)nificant &elation!hip *Second &e!tate7ent+ 1. #ules of olic! rather than theor! (broad list of factors for a lication to a)oid the theoretical a roach of the First #estate%ent) 2. ;ote that the 'econd #estate%ent offers a true balancing test. whereas Currie does not allow balancing in interest anal!sis ". Second &e!tate7ent anal#!i! a. 8 court. sub&ect to constitutional restrictions. will follow a statutor! directi)e of its own state on the choice of law b. In the a6!ence of !"ch directi5e9 appl# the law of the place that ha! the 7o!t !i)nificant relation!hip to the occ"rrence. 5hilli s ). >A Cor . (Aontana resident bu!s car in ;C@ bu!er and fa%il! ha)e an accident in -ansas@ sole sur)i)ing fa%il! %e%ber %o)es to ;C and files suit against >A in Aontana@ Aontana ado ts the 'econd #estate%ent@ >A argued that -ansas law should a l! because that law li%ited liabilit!@ court held <ansas had no interest (= 5 of .econd 4estatement) in products not sold in <ansas and no interest in non2<ansas victims; Montana has a big 1H

Conflicts of Laws Friedenthal Fall 2008 interest! domicile of decedents before death, relationship between the parties, justified expectations, basic policies underlying field of law, uniformity and predictability) c. =se enu%erated general considerations to %a*e this deter%ination i. +he needs of the interstate and international s!ste%s ii. +he rele)ant olicies of the foru% iii. +he rele)ant olicies of other interested states and the relati)e interests of those states in the deter%ination of the articular issue i). +he rotection of &ustified e( ectations ). +he basic olicies underl!ing the articular field of law )i. Certaint!. redictabilit!. and unifor%it! of result )ii. $ase in the deter%ination and a lication of the law to be a lied d. #eference absolute rules that will a l! in certain cases i. &eal propert#7 law of the situs a lies ii. Mo5ea6le propert# *inter 5i5o!+7 the law of the lace where the ro ert! is located a lies iii. Mo5ea6le propert# *inte!tate+7 the law of the lace where the decedent is do%iciled at the ti%e of death a lies i). Stat"!7 law of the do%icile a lies e. 8lso consider resu% tions that certain laws will a l! in certain cases i. +hese resu% tions %a! not ha)e an! real )alue because the! re)ert bac* to the First #estate%entKtraditional rules ii. It is possible to overcome these presumptions using = 5 ,if, with respect to a particular issue, some other state has a more significant relationship%iii. $(a% les 1) Tort!7 a licable law will nor%all! be the lace where the in&ur! occurred 2) Spo"!alEfa7il# i77"nit#7 a licable law will nor%all! be the law of the arties3 do%icile ") Contract!7 a licable law will nor%all! be the lace of the %a*ing of the contract and erfor%ance if the sa%e (sub&ect to so%e e(ce tions). Dood 4ros. Io%es. Bnc. ). Dal*er 8d&ust%ent 4ureau (C1 contractor entered into contract with defendant in ;A to wor* on ro&ect in ;A@ ;A officials sto ed the wor* because contractor was not licensed in ;A@ contractor sued in C1 to reco)er for wor* done@ C1 law would ha)e allowed reco)er!@ ;A law bars reco)er! for an unlicensed contractor once he is off the &ob@ M/s interest in controlling construction, licensing and contracting outweighs $7/s interest in validating contracts and protecting $7 parties/ expectations; presumption that the law of the place of performance applies is not overcome here) E) Capacit# to contract7 a licable law is nor%all! the lace of do%icile of the art! at issue G) Contract"al for7alitie!7 a licable law is nor%all! where the contract was e(ecuted H) Stat"te of li7itation!7 foru% will a l! its own law barring the action or er%itting the action unless7 Aaintenance of the action would ser)e no significant interest of the foru%. and +he action would be barred under the statute of li%itations of a state ha)ing a %ore significant relationshi to the arties and occurrence i). 8d hoc balancing where no resu% tions a l! 1F

Conflicts of Laws Friedenthal Fall 2008 1) +orts7 lace of in&ur!. do%icile. residence. nationalit!. lace of business. lace where the relationshi between the arties is centered 2) Contracts7 lace of negotiation. e(ecution. erfor%ance. location of the sub&ect %atter. and do%icile. residence. nationalit! and lace of business of the arties E. 'econd #estate%ent a roach is said to fail recisel! because it is not based on an! hiloso hical a roach a. Bt e( ects courts to a l! rational logic i. 5eo le ). 1?HE 6ictoria (+P bu!er urchases car fro% +P seller in +P on a %ortgage that re2uires the car to sta! in state until the %ortgage is aid@ bu!er too* car to C8 and car was i% ounded when drugs were disco)ered@ bu!er is in &ail not %a*ing a!%ents@ seller sued for return of car@ C8 law re2uires reasonable in)estigation of bu!er rior to sale@ +P law allow re ossession e)en without in)estigation rior to sale@ reasonable expectations of the seller weigh more heavily in favor of 8> law especially against $#/s little interest in the car itself) b. 4ut it also re2uires courts to a l! rules that ha)e no %eaning G. Center of 'ra5it# Approach *4ew ForG co"rt!+ a. +he 9center of gra)it!: a roach led to the 9%ost significant contacts: test of the 'econd #estate%ent b. +ension between 8uten and Iaag led to de)elo %ent of Q H of 'econd #estate%ent i. &"le: "nder the ;center of )ra5it#< approach9 the co"rt will appl# the law of the place ha5in) the 7o!t intere!t in the ca!e. 8uten ). 8uten (;J 1?GE) ($nglish cou le se arate and husband %o)ed to ;J@ wife went to ;J to sign se aration agree%ent with husband where he ro%ised to a! su ort if wife did not sue@ husband did not a! se aration su ort. so wife filed suit in $ngland@ she dro ed that suit. but brought another in ;J@ under ;J law. husband would not be liable because wife breached the agree%ent b! filing suit e)en though she didn3t follow through@ under $nglish law. wife could reco)er@ even though traditional rule would apply & law because agreement was signed 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! will e7pha!iAe 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! or the place*!+ of 7aGin) or perfor7ance+. Iaag ). 4arnes (;J 1?H1) (BL law!er i% regnated his secretar! in his ;J office@ secretar! went to BL to sign child su ort agree%ent@ secretar! brings suit in ;J later for additional su ort@ under BL law. contract was binding@ under ;J law@ contract for child su ort would onl! be binding if it went before a &udge who deter%ined fairness@ court held center of gravity was IL because that was where the contract was signed even though the relationship occurred in and child lived in &) F. The Better Law 1. Leflar?! rinciple! a. 5redictabilit! of #esults i. +o a)oid foru% sho ing ii. +o rotect e( ectations b. Aaintenance of Bnterstate and Bnternational 1rder i. 8 %ere reference for one3s own law in an! gi)en instance is not a ro riate c. 'i% lification of the Judicial +as* i. +his is not articularl! i% ortant d. 8d)ance%ent of the Foru%3s >o)ern%ental Bnterest i. +his is different than arochial. local interest 18

Conflicts of Laws Friedenthal Fall 2008 ii. +his is the foru%3s interest in doing &ustice (fairness and funda%ental rightness) iii. +his can be considered an altruistic interest as o osed to Currie3s selfish interest in interest anal!sis e. 8 lication of the 4etter #ule of Law (%ost otent) i. +his is a weighing of the conflicting laws ii. Choice of law rinci les ha)e alwa!s fought against this 2. Ail*o)ich ). 'aari (Ainn. 1?F") (1ntario dri)er and assenger are in an accident in Ainn.@ 1ntario has a guest statute@ Ainn. does not ha)e a guest statute) a. 5redictabilit!7 torts aren3t redictable (but we can also loo* at this as an insuranceKcontract case) b. Bnterstate considerations7 international order would not be disru ted b! a lication of either law c. 'i% lification7 both laws are eas! enough to a l! d. Foru%3s go)ern%ent interest7 Ainn.3s go)ern%ental interest is in allowing an in&ured erson to collect fro% the indi)idual at fault e. +he better law7 the court loo*s at se)eral s ecific factors. including the fact that guest statutes ha)e been increasingl! re ealed and archaic@ court holds that &udges should find collusion between dri)ers and assengers as a factual %atter rather than regulating that &udg%ent (so Minn% law applies) ". Je son ). >eneral Cas. Co. of Disconsin (Ainn. laintiff was in&ured in 8riCona@ he owned a business in ;< and insured si( co% an! cars in ;< using ;< rates@ Ainn. law allowed stac*ing@ ;< law did not allow stac*ing@ court applied : law) a. 5redictabilit!7 the insurance contract related to ;< )ehicles for an ;< co% an! based on ;< rates@ redictabilit! and certaint! would be ser)ed b! a l!ing ;< law b. Bnterstate order7 this case see%ed to in)ol)e foru% sho ing because the suit was brought in a state that allowed stac*ing@ discouraging foru% sho ing would ser)e interstate order c. 'i% lification7 not a consideration here d. Foru%3s go)ern%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 close 2uestion. the altruistic )alue (co% ensating the )icti%) %ight re)ail e. +he better law7 the court had trouble with this because one state cannot ic* which law between the two &urisdictions is best '. Other ro6le7! 1. Depeca)e a. Application of r"le! of different !tate! to deter7ine different i!!"e! in a !in)le !"6!tanti5e ca"!e of action b. 'ubstanti)e and rocedural distinctions c. <e ecage %a*es sense as a %odern rule d. I! othetical i. 8ccident in Aass.@ laintiff and defendant are both fro% ;J@ defendant is a charit! and was not negligent 1) Aassachusetts law ro)ides for (1) charitable i%%unit!. but (2) liabilit! without fault for dri)ing an unregistered )ehicle 2) ;ew Jor* law ro)ides for (1) no i%%unit! for charities. but (2) re2uires a showing of negligence to re)ail ii. B%%unit! issue7 Aassachusetts has no interest in rotecting a ;J charit!. so the Aass. charitable i%%unit! rule should not a l! iii. Liabilit! issue7 Aassachusetts does ha)e an interest in regulating and deterring unlicensed )ehicles on its roads. so the Aass. negligence rule should a l! e. Aar!land Cas. Co. ). Jac* (;J) ( laintiff issues auto olic! to ;J defendant@ defendant and wife were in&ured in car accident in ;J@ wife sued defendant in ;J@ laintiff sought declarator! relief as to insurance liabilit!@ ;J law ro)ides s ousal i%%unit!@ ;J law 1?

Conflicts of Laws Friedenthal Fall 2008 does not ha)e s ousal i%%unit! but re2uire s ecial contractual ro)ision not e(istent here@ court held that & law (place of wrong) would apply to tort so that wife could bring suit and 1 law (place of tort) would apply to the contract so that defendant could collect on insurance) i. Bt %a! be ossible to distinguish this fro% the h! othetical7 1) +he h! othetical in)ol)ed charitable i%%unit! and negligence standards unrelated 2) +he case in)ol)ed s ousal i%%unit! for a tort and the abilit! to collect on insurance when sued b! a s ouse related as for%s of s ousal i%%unit! ii. 8rguabl!. we should not a l! de ecage to related issue and instead loo* to the whole law 2. &en5oi and Intere!t Anal#!i! a. 5fau ). +rent 8lu%inu% Co. (C+ laintiff was in&ured in Bowa in an accident with ;J defendant@ Bowa has guest statute@ ;J and C+ do not ha)e guest statutes) i. Bowa law should not a l! because Bowa has no interest in a l!ing its guest statute to this situation (thus. no conflict) ii. Connecticut follows lex loci delicti@ ta*ing Connecticut3s choice of law rules into account. Connecticut would a l! Bowa3s substanti)e law iii. ;J court held that C+3s lex loci delicti rule was procedural@ the a lication of C+3s choice of law rules has nothing to do with substanti)e olicies. +he real interest is in a l!ing C+ law. and there is no conflict. b. 8%erican Aotorists Bns. Co. ). 8#+#8 >rou . Bnc. (A< insurer entered into insurance contract in BL@ insurer clai%ed it was not liable for co)erage of cleanu of to(ic waste@ A< nor%all! a lies 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 contacts or the forum ; in this case, both pointing to M:; so M: law applies) ". &"le! (er!"! Standard! a. #ules7 li%its arbitrar! e(ercise of authorit!. %ini%iCes the costs of ad%inistration. and %a(i%iCes certaint! b. 'tandards E. Co7ple@ Liti)ation a. Class actions i. 4est wa! to defend a class action is to get certification denied ii. Class action certification or denial is sub&ect to interlocutor! a eal iii. 5ossible results 1) <ecertification (se arate suits) 2) Court find one law a lies. Bn re 8ir Crash <isaster ;ear Chicago. Bllinois on Aa! 2G. 1?F? (class action consolidated in Bllinois court@ onl! issue left was uniti)e da%ages@ air lane %anufacturer and airline re2uested uniti)e da%ages be calculated based on each laintiff3s original state@ federal court applied the conflicts law of the state in which it sits and IL engages in depecage) 5laintiffs3 do%iciles la! no role in deter%ining uniti)e da%ages since a lication de ends largel! on the lace of defendants3 conduct Court loo*s at conflicts a roach of each transferor state and a lies that a roach to deter%ine the law go)erning uniti)e da%ages (C8 co% arati)e i% air%ent@ all others %ost significant relationshi ) ") 'ettle%ent b. Bn re 98gent 1range: 5roduct Liabilit! Litigation (;J class action on behalf of o)er two %illions 6ietna% Dar )ets@ $hief 1udge ?einstein held the court should discern a 20

III.

Conflicts of Laws Friedenthal Fall 2008 national law because applying state law for every individual would be impossible , but wasn3t federal co%%on law outlawed b! $rie? 5arties settled) c. 8LB Co% le( Litigation 5ro&ect i. Liabilit!7 a l! the following rules in successi)e order of eli%ination in order to resol)e true conflicts regarding liabilit! law7 1) +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 ha)e their rinci le lace of business. with regard to clai%s against that defendant@ ") +he state in which all laintiffs habituall! reside or ha)e their rinci le lace 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 conduct occurred ii. Co% ensator! da%ages7 the sa%e law that go)erns liabilit! will go)ern the issue of %onetar! relief other than uniti)e da%ages@ the issues of %onetar! relief and liabilit! %a! be se arated (de ecage) if the olicies underl!ing the for%er are different fro% those underl!ing the latter iii. 5uniti)e da%ages7 law on uniti)e da%ages is a licable if two of the three oints of contact are shown (but defendant can re)ent the a lication of uniti)e da%ages law b! showing the i% osition was not foreseeable to the defendant reasonable expectations) 1) 5lace of in&ur! 2) 5lace of conduct ") 5rinci le lace of business or residence of defendant G. Conflict! in C#6er!pace a. -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 cons irator is in the ='? i). Iow do we deter%ine obscenit! across national boundaries? b. +reaties i. +reaties hel define international rights and obligations ii. 4ut constitutional rules %a! re)ent these roble%s fro% being co% letel! sol)ed b! treaties c. The DS tend! to "!e a territorial%6a!ed 7ethodolo)#9 followed 6# an application of traditional choice of law principle! d. $nforce%ent of foreign &udg%ents has been a roble%. but 'C1+=' has not reall! addressed this. i. Licra $t =$JF ). Jahoo. Bnc. (France) (Jahoo.co% ad)ertised the sale of ;aCi ara hernalia accessible in France@ this )iolated French law@ French court ordered Jahoo to re)ent French consu%ers fro% accessing this %aterial) ii. Jahoo. Bnc. ). LBC#8 (=') (French org sought to enforce French &udg%ent in the ='@ Jahoo argued against enforce%ent citing First 8%end%ent@ court held principles of international comity were outweighed by court/s legal obligation to uphold 3irst #mendment) e. Bnternational co%it!7 the recognition of foreign rules and decisions 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 indi)idual (due rocess rights of indi)idual arties) b. Bssue7 funda%ental fairness and e(ce tion

21

Conflicts of Laws Friedenthal Fall 2008 c. +he court ha)e ta*en a )er! lenient osition on due rocess7 if there i! any contact 7ore than de minimis9 the application of that law to the part# with tho!e contact! will not 6e 6arred. i. ;ew Jor* Life Bns. Co. ). <odge (insurance contract was %ade in ;J@ all other contacts were with A1@ laintiff sued in A1 because that was the onl! foru% in which he could reco)er@ A1 court a lied A1 law. but 'C1+=' re)ersed@ court held the place where the contract was entered into was sufficient to avoid a deprivation of due process, and there was no due process to sue defendant in M7) ii. 4ut what contacts e(actl! are sufficient to a l! a state3s law without de ri)ation of due rocess? Iartford 8cc. R Bnde%. Co. ). <elta R 5ine Land Co. (A'K+; cor oration entered into insurance contract in +;@ A' and +; law conflicted with regard to statutor! deadline to file a clai%@ court held M. law (forum) deprived the defendant of due process because of the limited and casual contact which the defendant had with M.; this case requires more than ;ew Jor* Life and instead loo+s to actual contacts li+e <ic*) d. &"le: where a !tate ha! nothin) to do with the tran!action at hand9 it 7a# not appl# a for"7 law that wo"ld depri5e a part# of d"e proce!!. Io%e Bns. Co. ). <ic* (1?"0) (+P citiCen li)ing in Ae(ico insured a boat with a Ae(ican co% an! under Ae(ican law with a one,!ear clai% li%it@ he sued for the loss of the boat in +P@ +P in)alidated insurance contract with clai% li%its of less than two !ears@ court rejected argument that 8> law was procedural and therefore the law of the forum applied; 8> rule on claims was fundamental to the rights and obligations under the contract and thus is a question of due process; defendants had no contact with 8>, so application of 8> law violation their due process) e. 8fter,the,fact %o)e into the foru% state %a! create unfairness to the defendant 2. F"ll Faith and Credit a. #elationshi between and a%ong the states b. Bssue7 considerations of national unit! c. &"le: a !tate 7"!t ha5e a real polic# intere!t in the application of it! law in order to appl# it! law o5er that of another intere!ted !tate witho"t 5iolatin) f"ll faith and credit. /Corollar!7 if the foru% has a real olic! interest. it does not ha)e to subordinate its law to that of another state0 i. 4radford $lectric Light Co. ). Cla er (6+ e% lo!ee sued 6+ e% lo!er under wor*ers co% ensation statute for in&ur! incurred in ;I@ 6+ %a*es wor*ers co% reco)er! e(clusi)e@ ;I3s wor*ers co% is not e(clusi)e@ e% lo!ee also brought suit against e% lo!er in ;I@ ;I a lied its own law and allowed the suit to roceed@ court held ' did not violate due process because there was enough contact and no unfairness or surprise because employer sent employee to wor+ in '; but ' did violate full faith and credit because ' did not demonstrate any interest in the application of its law to a 98 employer and 98 employee) ii. 8las*a 5ac*ers 8ssoc ). Bndustrial 8cc. Co%%3n (1?"G) (Ae(ican e% lo!ee signed e% lo!%ent contract in California and was in&ured in 8las*a@ e% lo!ee brought suit in C8 e)en though he had no ties to because C8 wor*ers co% was %ore generous@ contract re2uired 8las*a wor*ers co% law to a l!@ court held $# had sufficient interest in the claim to apply its own law and subordinate #las+a law) /The heart of thi! ca!e i! 6alancin) the court should a raise the go)ern%ental interests of each &urisdiction and decided which law should a l! according to weight.0 /Cla er held ;I law could not a l! without )iolating full faith and credit@ 8las*a 5ac*ers held C8 law could a l! without )iolation full faith and credit.0 22

Conflicts of Laws Friedenthal Fall 2008 1) 5acific $% lo!ers Bns. Co. ). Bndustrial 8cc. Co%%3n (1?"?) /essentiall! o)erruling Cla er0 (Aass. e% lo!ee was wor*ing for a Aass. e% lo!er in C8 and was in&ured there@ court held $# law could apply by distinguishing $lapper because ' did not have an interest in that case but $# does here) /;ote that there is no 6alancin) at all here an! interest is sufficient to subordinate the other state3s lawO0 2) Carroll ). LanCa (1?GG) (A1 subcontractor wor*ing for a A1 e% lo!er was in&ured in 8r*ansas but is treated in A1@ e% lo!ees were li%ited to wor*ers co% in A1. but 8r*ansas law allowed e% lo!ees to sue general contractor as well@ court held #r+ansas law could apply because #r+ansas had an interest in cases li+e this) /;ote that the court definiti5el# reBect! 6alancin) hereO0 iii. 1rder of =nited Co%%ercial +ra)elers ). Dolfe (1?EF) (1hio assoc. established life insurance olicies for its %e%bers@ '< %e%ber died and widow did not %a*e clai% within si( %onths as re2uired b! the olic!@ '< law in)alidated the ti%e li%itation@ court reversed under full faith and credit because there is a special rule giving priority to the law of the state of incorporation of fraternal orders ; rather than balancing, the court was assuring uniformity among members) ". Con5er)ence a. &"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. 8llstate Bns. Co. ). Iague (1?81) (accident in DB between two DB citiCens@ widow brought suit in Ainn. because Ainn. allowed stac*ing of her three olicies and DB did not@ court allowed Minn% law to apply@ d"e proce!! contact! (a) insurance olic! co)ered accidents an!where. not li%ited to DB. (b) widow beca%e a Ainn. citiCen. (") decedent wor*ed in Ainn. e)er!da! before death@ f"ll faith and credit this oint was folded into the due rocess argu%ent but it is %ore co% licated because Ainn. has no real interest in decedent as a for%er e% lo!ee and %a! ha)e an interest in the welfare of the Ainn. widow. but both of those are unrelated to the insurance stac*ing issue) 1) Cf. Jates (due rocess does not allow ost,e)ent state law to a l! if the defendant has no contacts with the new state and laintiff %o)ed there onl! for litigation ur oses) 2) Datson ). $% lo!ers Liab. 8ssur. Cor . (L8 citiCen was in&ured b! %achine roduced b! BL co% an!@ laintiff sued co% an!3s insurer under L8 direct action statute@ court held L# could apply its own law because the insured co% did business all over the country (due process) and L# has an interest in protecting its citi@ens from injury in L# (full faith and credit)) ii. 5hilli s 5etroleu% Co. ). 'hutts (5hilli s leased %ineral rights fro% land owners in e(change for sales ro!alties@ 5hilli could file re2uest to raise rices with F$#C and could raise those rices during the ro)isional eriod before a ro)al. but would not a! higher ro!alties during that ti%e@ laintiffs filed class action in -'@ statute of li%itations ran in %ost other states@ <. court applied <. law to all claims) 1) 5hilli s a ealed arguing that -' had no contacts with %ost of the clai%s 2) 5laintiffs res onded that -' had a rocedural interest in ha)ing all clai%s tried under sa%e law (Bs rocedural interest alone sufficient for full faith and credit? 5robabl! not. "acific 0mployers says procedural interest may satisfy, but says nothing about procedural interest alone) 2"

Conflicts of Laws Friedenthal Fall 2008 ") 'u re%e Court held that -' can retain &urisdiction but %ust go through the constitutional conflicts anal!sis for each state clai% E) J. 'te)ens concurring7 while loo*ing at the law of the other states. there %a! be no conflict. so -' law could a l! an!wa! in so%e instances iii. Franchise +a( 4oard ). I!att (C8 ta( board audited I!att in ;6@ I!att clai%s intentional torts co%%itted b! the auditors@ C8 i%%uniCed ta( auditors. but ;6 did not i%%uniCe for intentional torts@ 9 court applied its own law because the forum had articulated an interest in protecting citi@ens specifically from intentional torts from anyone) 1) ;e)ada ). Iall (;6 official wor*ing in C8 in&ures a C8 citiCen@ ;6 has a so)ereign i%%unit! law li%iting da%ages@ laintiff brought suit in C8 because C8 wai)ed so)ereign i%%unit!@ court applied $# law because the forum had articulated an interest in protecting its citi@ens from injury and allowing them to collect damages from anyone; this also satisfies due process because 9 +nowingly sent employee into $#) b. After%the%fact 7o5e into the for"7 i! not rele5ant for thi! anal#!i!. Cla! ). 'un Bns. 1ffice Ltd. (BL citiCen urchased ro ert! insurance fro% 4ritish insurer doing business in BL and FL@ insured %o)ed to FL and lost the ro ert!@ insurer clai%ed insured did not bring clai% within re2uired 12 %onths@ FL statute of li%itations was G !ears@ court applied 3L statute of limitations because insurer did business in 3L and insured moved there before the loss (due process) and 3L has an interest in protecting the 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")hC i. 5acific $% lo!ers (C8 did not ha)e to gi)e u its re%ed! in fa)or of the re%ed! offered b! Aass. law. but this holding does not necessaril! %ean that rocedural interest is sufficient for full faith and credit) ii. 'hutts ( rocedural interest alone is not sufficient for full faith and credit@ substanti)e interest is also re2uired) iii. 'un 1il ). Dort%an (1?88) /'hutts on re%and0 (-' court a lied its statute of li%itations to all clai%s e)en if the substanti)e law of other states was to be a lied@ .upreme $ourt affirmed because statutes of limitations are procedural and thus governed by forum law) /;ote that the Court here a lied conflicts of laws rinci les to a constitutional 2uestion@ the e( ansion of a right b! e(tending the statute of li%itations for so%e clai%s %a! actuall! )iolate due rocess.0 d. Ferens ). John <eere Co. (58 resident was in&ured in 58 b! a %achine %anufactured in BL b! a <$ cor .@ 58 statute of li%itations had run. so laintiff brought suit in A' (no relationshi to clai%)@ laintiff then transferred the case to 58@ 58 court dis%issed the transferred case based on statute of li%itations@ .upreme $ourt reversed because the traditional rule requires the transferor court to apply the law that would have been applied by the original forum ; forum shopping at its worst!) B. O6li)ation to ro5ide a For"7 1. &"le: when a !tate ha! no intere!t in appl#in) it! own law9 6"t application of other law wo"ld 6e rep")nant or a)ain!t p"6lic polic#9 that !tate 7"!t !till pro5ide a for"7 to a tran!itor# ca"!e of action that ari!e! el!ewhere (this rule probably also a lies if the foru% could articulate a olic! interest. but has not done so b! the ti%e of suit) a. Iughes ). Fetter (1?G1) (DB laintiff sued DB defendant in DB for under BL wrongful death statute for accident which occurred in BL@ if laintiff had brought suit under the DB wrongful death statute. it would ha)e been dis%issed on the %erits because DB wrongful death statute does now allow suits in DB if the accident did not occur in DB@ if ?I court does not apply IL law, this plaintiff and all future plaintiffs will never be able to 2E

Conflicts of Laws Friedenthal Fall 2008 sue for wrongful death if the accidents occur outside ?I; full faith and credit requires one state to ta+e of the law of another when necessary; therefore, it violates full faith and credit for ?isconsin to legislate that it will never entertain another states/ laws) b. 4roderic* ). #osner (1?"G) (;J laintiff brought suit in ;J against ;J shareholders of failed ;J ban*@ ;J law set forth rocedure re2uiring laintiffs in these t! es of cases to sue shareholders and an! other arties affiliated with the ban* this would ha)e been a legal i% ossibilit!@ court held the purpose of 1 law is not to effect any 1 policy, but rather to prohibit success of any out2of2state suit; therefore, 1 may not reject the application of another state/s law) 2. E:"al rotection a. &"le a for"7 cannot ref"!e B"ri!diction witho"t !o7e !ort of proced"ral B"!tification8 thi! i! a for7 of di!cri7ination a)ain!t application of the law of another !tate i. Bf forum non conveniens is a lied based on e)aluation of se)eral factors and on a case,b!,case basis. then it is a %eritorious doctrine and not discri%ination ii. Loo* to see whether the basis for the re&ection of the case is rocedure or substance is it outco%e,deter%inati)e? 8 rocedure %a! be outco%e, deter%inati)e. but if it is a lied e2uall!. it will not )iolate full faith and credit. Dells ). 'i%onds 8brasi)e Co. ( laintiff was in&ured in 8laba%a b! defendant3s roduct@ laintiff filed suit in 58 under 8L law@ 58 court held substanti)e 8L law a lied. but dis%issed the case based on its own statute of li%itations@ .upreme court held this was not discriminatory because the one2year statute of limitations was applied by "# court to all cases regardless of applicable substantive law) b. +ennessee Coal. Bron R ## ). >eorge (1?1E) (>8 laintiff in&ured in 8L@ he sues +ennessee Coal in >8 under the 8L e% lo!er liabilit! statute@ 8L re2uired those suits to be brought in 8L court. so >8 dis%isses the suit based on the 8L statute3s re2uire%ent@ court held the cause of action is transitory, so a forum state is ordinarily required to give full faith and credit to all applicable substantive provisions of another law, but not to venue provisions; #L cannot give a cause of action while prohibiting the cause of action to be exercise in any court having jurisdiction) /;ote that if laintiff was not fro% >eorgia. >eorgia would ha)e no real olic! interest in the case and it would ha)e to a l! all of 8laba%a3s law.0 ". Crider ). Murich Bns. Co (8L resident in&ured in 8L wor*ing or >8 cor oration@ he sued in 8L under >8 wor*ers co% statute which re2uires that clai%s be brought to wor*ers co% board rather than court) a. >eorgia has a strong interest in ha)ing its board ro)ision a l! because the board is co% rised of e( erts that deter%ine the e(tent of in&ur! and creates a funda%ental as ect different fro% the law as it would be treated in court. b. 8laba%a has a strong interest in ro)iding its citiCens with a foru% and. arguabl!. an interest in the tribunal as ect of that foru%. 8herefore, #labama has an interest and could apply non2tribunal substantive provisions of the A# statute without violating full faith and credit. c. Bf 8laba%a dis%issed the case based on the board ro)ision of the >8 statute. it would not )iolate Iughes because >eorgia has an interest in a l!ing its law and has ersonal &urisdiction o)er the defendant@ so laintiff could bring suit in >eorgia no %atter how incon)enient. E. Dea)er ). 8laba%a >reat 'outhern ## (8L resident in&ured in 8L while wor*ing for an 8L cor oration@ he sued in >8 to a)oid 8L3s contributor! negligence law@ 8L en&oined >8 fro% hearing the suit@ this was the correct result because A# had no interest in the suit, no contacts to the case, and would have violated full faith and credit and 'ughes by ignoring #L/s exclusive interest) C. Dncon!tit"tional Di!cri7ination in Choice of Law 2G

Conflicts of Laws Friedenthal Fall 2008

1. ri5ile)e! H I77"nitie!EE:"al rotection Cla"!e!

a. +he citiCens of all states are entitled to the ri)ileges and i%%unities of all states (e(cluding cor orations or aliens) b. Dhat is a ri)ilege? i. +hose ri)ileges and i%%unities which are. in their nature. funda%ental@ which belong. of right. to the citiCens of all free go)ern%ents@ and which ha)e. at all ti%es. been en&o!ed b! the citiCens of the se)eral states 1) Funda%ental rights include owning ro ert!. ri)ate e% lo!%ent. and rights to state benefits (welfare) 2) Balancing test7 it is o*a! to discri%inate if there is a good reason and the restrictions are on tri)ial rights ii. 4aldwin ). Aontana Fish R >a%e (nonresident challenged Aontana3s rule of charging %ore for hunting licenses to nonresidents )ersus residents@ hunting is a ri)ilege. and a state cannot reclude nonresidents fro% hunting@ but it is recreational rather than fundamental so M8 can charge more to nonresidents for 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 )iolated 5ri)ileges and B%%unities (the )er! choice of law is discri%inator! because it is based on a art!3s residence and a court3s interest in a l!ing or not a l!ing that certain law) 2. 'u re%e Court of ;I ). 5i er (5i er li)ed in 6+ near the ;I border@ she a lied to ta*e the ;I bar. but ;I denied her re2uest because she was not a ;I resident@ the right to ta*e an e(a% to enter a rofession is a co)ered ri)ilege@ ;I clai%ed its reason to discri%inate was because law!ers are officers of the court and nonresidents shouldn3t be in)ol)ed in state affairs@ court rejected these arguments ; lawyers are not state officials, there is no reason to believe 98 residents will be less familiar with ' law or less ethical, ' bar governs lawyer conduct no matter where they live, and 98 residents will be just as responsible for ma+ing court dates and doing pro bono) OTHE& A I(. LICATIO4S

&eco)nition of $"d)7ent! A. &e! $"dicata and Do7e!tic olicie! of Finalit# 1. Two a!pect! of B"d)7ent reco)nition with a !tate a. &e! B"dicata (clai% reclusion) i. 8 second suit cannot be used to litigate a clai% that should ha)e been raised in a rior action b. Collateral e!toppel (issue reclusion) i. +he issue %ust ha)e been raised and litigated ii. +he art! who re)ailed can re)ent an issue fro% being re,litigated in a se arate action 51 ). < (< found negligent) 52 ). < (collateral esto el a lies because %utualit! no longer re2uired) 1riginal suit has to be litigated on the %erits and fairl! tried 51 ). < (< found not negligent) 52 ). < (collateral esto el cannot a l!) 2. AttacGin) a B"d)7ent a. <irect attac* (a eal) b. Collateral attac* 2H

Conflicts of Laws Friedenthal Fall 2008 i. 8rgu%ent that a &udg%ent should not be gi)en reclusi)e effect in a se arate action ii. $ach state deter%ine when collateral attac* is er%itted c. Full faith and credit i. 28 ='C Q 1F"87 &udg%ent of one state %ust be honored b! another ii. +he sco e of the suit will deter%ine the effect of the &udg%ent in another state B. F"ll Faith and Credit to $"d)7ent! 1. 'eneral &"le!: a. 8 court %ust enforce a &udg%ent b. 8 court %ust enforce a &udg%ent to the e(tent it affects the articular arties (Jarborough) c. +he rendering court deter%ines the sco e of the &udg%ent@ a art! cannot bring a second clai% in a second state for an issue included in the sco e of the first &udg%ent d. +he rendering court does not bind indi)iduals not art! to the original suit e. $(ce tions to full faith and credit7 i. +he first court %a*es a legal rather than factual deter%ination (this can be re, litigated b! a second court) ii. #eal ro ert! 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@ re)ailing art! too* the arbitration award to A1 for enforce%ent and re)ailed@ re)ailing art! then too* the A1 &udg%ent to A' for enforce%ent@ A' court refused to gi)e effect to the A1 &udg%ent as abhorrent to A' ublic olic!@ .upreme $ourt required M. to enforce M7 judgment under full faith and credit) a. De need a rule that %a*es &udg%ents )alid e)er!where@ without such a rule. &udg%ents beco%e unreliable and insecure b. ;ote that state and federal laws now allow a re)ailing art! to register a certified co ! of a &udg%ent in a second state where it is then gi)en effect (rather than 9action on a &udg%ent:) ". Jarborough ). Jarborough (>8 court decreed a di)orce. ga)e custod! to the %other. and re2uired father to a! a lu% su%. one,ti%e a%ount@ child %o)ed to 'C to li)e with grandfather@ when she turned 1H. she brought suit in 'C for %ore child su ort@ 'C court ordered the father to a! an additional su% er %onth@ .upreme $ourt held that A# order was not modifiable and father had already applied; full faith and credit required .$ court to recogni@ed A# decision as final) a. 'econd state in Fauntlero! would not ha)e recogniCed first state3s &udg%ent at all b. 'econd state in Jarborough recogniCed first state3s &udg%ent. but %odified the original &udg%ent@ dissent in &arborough believes recognition and reinterpretation satisfied full faith and credit E. Iart ). 8%erican 8irlines (;J )icti%s brought suit in +P against airline for accident in -J and re)ailed@ ;J )icti%s then brought second suit for sa%e accident in ;J7 airline argued +P &udg%ent esto ed further liabilit! and that further%ore. +P still relied on %utualit! so ;J laintiffs would not ha)e been able to rel! on re)ious &udg%ent@ essentiall!. airline argued that full faith and credit a lies not onl! to the &udg%ent itself. but to the limitations on the &udg%ent as well@ & court held the judgment could be given preclusive effect in & upon which plaintiffs could rely; when a second suit is at issue (rather than just modification of the prior judgment), the second court may determine how much effect is to be given to the previous judgment) G. Bf the rendering state would allow a collateral attacG on the B"d)7ent. then a second state can ro)ide a foru% for the sa%e *ind of collateral attac*@ this would be consistent with full faith and credit (no %ore. no less) C. $"d)7ent! and the Intere!t of the For"7 2F

Conflicts of Laws Friedenthal Fall 2008 1. +ho%as ). Dashington >as Light Co. (<C resident was in&ured while wor*ing in 68@ he won an award b! the 68 wor*ers co% board@ under 68 law. the board3s award is an e(clusi)e. binding deter%ination@ .upreme $ourt held plaintiff was allowed to see+ more favorable supplementary award in :$ based on full faith and credit) a. Aagnolia ( laintiff cannot see* a su le%entar! award after recei)ing a &udg%ent fro% a wor*ers co% board in another state) b. AcCartin ( laintiff can see* a su le%entar! award where the first state3s law does not include 9un%ista*able language: recluding co% ensation fro% a second state) c. +ho%as7 Court distinguished Aagnola b! finding a distinction between an ad%inistrati)e board and a court of general &urisdiction a wor*ers co% board in 68 would not ha)e &urisdiction to a l! <C law. so laintiff is allowed to ad&udicate his <C law clai%s in a <C court /3riedenthal says this distinction ma+es no sense and we can no idea what the law is after this case.0 D. Li7itation! on F"ll Faith and Credit 1. Bssues of fact. <urfee ). <u*e (issue of sub&ect %atter &urisdiction turned on whether land was in Aissouri or ;ebras*a@ ;ebras*a court found land was in ;ebras*a and awarded title to laintiff@ defendant then sued in Aissouri clai%ing the land was in Aissouri@ M7 court dismissed the claim based on full faith and credit because the ebras+a judgment precluded the issue of fact from being retried) 2. Dai)er of defense. +reinies ). 'unshine Aining Co. ( laintiff won in D8 court regarding di)ision of decedent3s estate@ defendant sued in Bdaho and re)ailed@ laintiff brought third suit in D8 to enforce original &udg%ent@ .upreme $ourt held that Idaho judgment was entitled to enforcement in the third suit in ?# because both Idaho court and plaintiff ignored the original ?# judgment; res judicataCfull faith and credit is a defense that is lost if not raised) E. Foreclo!"re of $"ri!dictional I!!"e! 1. &"le: a co"rt doe! not ha5e to enforce a B"d)7ent that i! rendered witho"t B"ri!diction 2. 5ersonal &urisdiction a. <ue rocess7 there %ust be a connection between the erson and the state clai%ing &urisdiction o)er the erson b. +he only time a second court can retr! the 2uestion of ersonal &urisdiction (collateral attac*) is when the defendant never appeared in the first court ". 'ub&ect %atter &urisdiction a. 'ub&ect %atter &urisdiction is not a constitutional issue b. 8 court. at an! ti%e in the suit. %a! e)aluate sub&ect %atter &urisdiction c. 1nce a final &udg%ent has been rendered. the issue of sub&ect %atter &urisdiction is closed. even if the subject matter jurisdiction issue was not raised d. Iowe)er. if the rendering state itself allows a collateral attac*. then it can also be attac*ed in another state F. Land Ta6oo 1. Clar*e ). Clar*e ('C wo%an died and left C+ ro ert! e2uall! to husband and two daughters@ the law of the deceased3s do%icile controls ersonal ro ert!. but a will is the ulti%ate authorit!@ husband went to C+. sold the ro ert!. and di)ided the roceeds@ for choice of law. the law of the situs of the real ro ert! control. and C+ the sur)i)ing daughter would get e)er!thing@ C+ refused to enforce 'C &udg%ent enforcing the will and di)iding the ro ert! e2uall!@ .upreme $ourt denied full faith and credit to .$ judgment because real property is not within the jurisdictional power of other states so .$ had no subject matter jurisdiction over the case) a. Li)ingston ). Jefferson (Li)ingston sued Jefferson for da%age to ro ert! during 4attle of Louisiana@ trial court created ,local action rule- requiring suit for damage to real property to be brought where the property is located; this became a jurisdictional rule) 2. Fall ). $astin (D8 husband and wife di)orced there@ D8 court decreed ;ebras*a land to wife as art of the di)orce@ husband ordered to gi)e a deed to wife. but instead deeded the ro ert! to so%eone else in ;ebras*a@ D8 court created deed@ wife too* deed to ;ebras*a 28

Conflicts of Laws Friedenthal Fall 2008 and sued for enforce%ent and in)alidation 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 therefore unenforceable) a. +his case does not stand for the ro osition relating to full faith and credit. but rather for the ro osition that the Dashington court had no ower to %a*e a deed to land in another &urisdiction b. +he di)orce decree was acce table. but the method of enforcement should ha)e been left to ;ebras*a '. 4on%Final Decree! 1. 8 &udg%ent is final if a court sa!s it is final and enforceable (states ha)e their own rules regarding finalit! during a eal) 2. Aodifiable (su ort) decrees are non,final a. Aodifiable decrees can be artiall! final if %odifiable onl! prospectively b. 'tandards for %odification are those of the rendering court@ a second court %a! %odif!. but %ust use rendering court3s standards ". Dorthle! ). Dorthle! (;J cou le %arried and se arated there@ ;J se aration decreed ordered husband to a! wife wee*l!@ husband %o)ed to C8 and sto ed a!%ent@ wife brought suit in C8 see*ing bac* a! and continuation of wee*l! a!%ents@ 1 order was modifiable 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! 'u ort 8ct i. Aodification of an order for s ousal su ort %a! onl! be sought in issuing state ii. Aodification of an order for child su ort %a! be sought in an! other state if the custodial arent or su orting art! lea)es the rendering state iii. Bn the case of %ulti le orders of su ort. the controlling order is the one issued b! the state where the child resides H. E:"ita6le Decree! and O6li)ation to Enforce Si!ter%State $"d)7ent! 1. $2uitable decrees are final@ those resulting in da%ages are binding orders entitled to full faith and credit 2. Bn&unctions can onl! be enforced under full faith and credit as long as there are no new arties a. <efendant as*s first state court to en&oin a laintiff fro% bringing suit in a second state i. First state denied laintiff3s re2uest to dis%iss. but laintiff brought suit in a second state an!wa! ii. <efendant used the in&unction awarded in the first state as a full faith and credit defense in the second suit b. 'econd court does not ha)e to gi)e full faith and credit to the in&unction i. +he second state was not a art! to the in&unction ii. First state could hold laintiff in conte% t for not abiding b! the in&unction (first state %a! enforce the in&unction b! an! reasonable %ethod) ". 4a*er ). >eneral Aotors Cor . (>A e% lo!ee $lwell ser)ed as witness for >A in roduct liabilit! cases@ he a eared against >A and was fired@ he sued >A for wrongful discharge@ $lwell and >A settle and $lwell agrees not to testif! against >A at a de o or trial unless co% elled b! the court@ $lwell has laintiffs sub oena hi% to get around the settle%ent agree%ent@ 4a*er hires $lwell to testif! in A1@ >A wanted A1 court to re&ect $lwell3s testi%on! as a )iolation of the agree%ent@ .upreme $ourt allowed 0lwell to testify because equity decrees should be given full faith and credit unless they affect the rights of others; here, neither the state nor Ba+er were parties to the injunction so AM/s only recourse is to see+ sanctions in Michigan or to register the injunction in M7 as M7 law) a. +his case stands for the ro osition that there is no full faith and credit where the sco e of the decision of the first court is e(tended be!ond the arties and the s!ste% b. $(tension7 a court does not ha)e to follow the sa%e rocedure of enforce%ent that the rendering court would ha)e used 2?

Conflicts of Laws Friedenthal Fall 2008 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 B"d)7ent! 2. 8llen ). AcCurr! (AcCurr! lost %otion to su ress during state court cri%inal trial@ AcCurr! then brought a Q 1?8" suit in federal court alleging unconstitutional search and seiCure@ AcCurr! argued that state &udg%ent should not be gi)en reclusi)e effect because Q 1?8" was s ecificall! assed due to state courts3 failure to )indicate constitutional rights (Q 1?8" 9car)es out: an e(ce tion to full faith and credit)@ .upreme $ourt held that this is more an issue of collateral estoppel ; particular issue ; rather than full faith and credit; = DE6F itself does not preclude application of collateral estoppel; a federal court may loo+ to a factual matter decided in a different, but related, case in another jurisdiction, but it is not bound to do 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 <$ court against Aatsushita for breach of fiduciar! dut!@ arties entered into settle%ent agree%ent relin2uishing rights to bring an! other clai%s including federal clai%s under federal securities law@ indi)idual arties who did not opt out of the settlement brought suit in federal court in California under federal securities law arguing that <$ state &udg%ent could not gi)e reclusi)e effect to the federal clai% because federal law ga)e federal courts e(clusi)e &urisdiction@ .upreme $ourt held that if neither the parties nor the court raised the issue and the state claim goes to final judgmentCsettlement, the judgment must be given full faith and credit) Di5orce9 Inter!tate and International Child C"!tod#9 Decedent!? E!tate! A. Di5orce 1. E@ arte Di5orce a. A co"rt 7a# chan)e 7arital !tat"! e@ parte of a do7icile (intent to re%ain co%bined with a lac* of intention to lea)e) i. Dillia%s ). 'tate of ;orth Carolina (Dillia%s and Iendri( (both ;C) di)orced their s ouses in ;6 and re%arried each other in ;C@ state charged the% with biga%! because it did not recogniCe ;6 di)orces@ .upreme $ourt held divorce proceedings are in rem proceedings, so the state of domicile can decree an ex parte divorce and full faith and credit must be given to the divorce decree; however, the second court ( $) could review the factual determination of domicile creating jurisdiction for ex parte divorce because it was it was never litigated in the 9 court) b. B"t a co"rt cannot affect ri)ht! in propert# *!"pport+ or children witho"t the pre!ence of the other !po"!e i. $stin ). $stin (wife had se arate %aintenance decree fro% ;J@ husband got e( arte di)orce in ;6 and sto ed a!ing under the su ort order@ wife sought to enforce su ort order in ;J@ .upreme $ourt held a court may only affect marital status ex parte and it cannot modify property rights (support) without the presence of the other spouse) ii. Cf. 'i%ons ). Aia%i 4each First ;ational 4an* (husband obtained e( arte di)orce in FL@ he died in FL and e(,wife re%ained in ;J@ e(,wife wanted FL law to a l! to her clai%s to dower after the e(,husband died@ court held (a) dower is not a support right li+e a support decree, and (b) application of 3L was not appropriate because she wanted 3L law to apply as opposed to the law of the state with personal jurisdiction over her) 2. Di5orce 6# Con!ent a. Con!ent di5orce! ha5e )enerall# 6een "pheld witho"t a for7al deter7ination a! to whether do7icile i! or i! not re:"ired b. When 6oth partie! are 6efore the co"rt9 the co"rt 7a# e@erci!e B"ri!diction o5er the 7arital !tat"! and 7arital propert# and ri)ht! "0

(.

Conflicts of Laws Friedenthal Fall 2008 i. 'herrer ). 'herrer (if both s ouses consent to &urisdiction of the di)orce, decreeing state. the final di)orce decree is binding as to all issues because both arties ha)e an o ortunit! to be heard on &urisdiction. do%icile. su ort. custod!. etc.@ such a di)orce also binds the go)ern%ent to recogniCe and gi)e full faith and credit to e)er! as ect of the di)orce decree. cf. Dillia%s) ii. Johnson ). Auelberger (FL re2uired ?0,da! do%icile for &urisdiction in di)orce roceeding@ father died and left e)er!thing to daughter. but daughter would ha)e to share with third wife@ daughter clai%ed that husband3s di)orce fro% second wife was in)alid because wife had not co% lied with FL3s ?0,da! re2uire%ent@ court held divorce valid because (a) the divorce was a consent divorce so domicile was moot, and (b) a third party to the marital relationship was attac+ing the divorce here) iii. A! a )eneral r"le9 DS co"rt! will reco)niAe forei)n di5orce! e5en tho")h there i! no re:"ire7ent to reco)niAe other forei)n B"d)7ent!. #osenstiel ). #osenstiel (husband went to Ae(ico to obtain di)orce@ he signed 9residenc!: registration and filed for di)orce onl! sta!ed in Ae(ico about one hour@ wife consented to di)orce in Ae(ico and had Ae(ican law!er a ear on her behalf@ divorce was held valid because it was consensual ; it would have been invalid if ex parte for lac+ of domicile) ". Sa7e%Se@ Di5orce and Di!!ol"tion a. Bssue7 whether to dis%iss for lac* of &urisdiction i. #osengarten ). <ownes (#osengarten and <ownes entered into ci)il union in 6+@ #osengarten sought di)orce in Conn.@ Conn. refused to e(ercise &urisdiction because ci)il union did not fall into an! of the fa%il! relations %atters set out in state law@ on appeal, $onn% court held civil union is not recogni@ed in state law, and $onn% public policy does not support giving full faith and credit to 98 law on civil unions; therefore, the $onn% courts have no jurisdiction over the divorce) ii. Bs this result acce table under Iughes ). Fetter (can a court si% l! dis%iss a case because it see%s re ugnant to so%e state olic!)? 1) =nder the Conn. &urisdictional statute. Conn. either had to ta*e the case as a transitor! clai% or gi)e it so%e s ecial status 2) Conn. had no olic! of refusal@ there is no other reason for Conn. not to e(ercise &urisdiction b. Aarriage is not a 9&udg%ent: or a decree. so is it entitled to full faith and credit? +his %a! be the other half of full faith and credit re2uiring state to recogniCe 9 ublic acts.: Bs %arriage a ublic act? c. Bf %arriage is not entitled to full faith and credit. a second state %a! a l! its own law on the %atter d. Children of sa%e,se( relationshi s i. <a)en ort ). Little,4owser (sa%e se( cou les ado ted four children born in 68@ 68 registrar refused to change the na%e of the arents on the birth certificate because the for% onl! had a lace for 9%other: and 9father:@ court order registrar to change birth certificate because the case was about changing birth certificates under 9# law, not same sex marriage) 1) 1*laho%a statute bars the recognition of ado tion b! sa%e se( cou les in an! other state this is roble%atic under full faith and credit because an ado tion is a judgment B. Child C"!tod# 1. Inter!tate Child C"!tod# a. Within a !tate9 a co"rt 7a# chan)e c"!tod# 6etween parent! or an#one el!e in accordance with !tate law i. Custod! and su ort are di)isible fro% the di)orce itself "1

Conflicts of Laws Friedenthal Fall 2008 ii. #eal &urisdiction o)er the arties is re2uired. Cf. Aa! ). 8nderson (court decided custody and support within the divisible divorce decree in order to avoid jurisdiction requirement@ this case has since been o5err"led there has to be &urisdiction o)er the other art! in order to ha)e &urisdiction o)er custod! and su ort issues) b. An# !tate B"d)7ent 7ade alon) the!e line! i! 6indin) in other B"ri!diction! c. +raditional standard7 e)aluation 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 8ct (=CCJ$8) i. 8tte% ted to sol)e &urisdictional issues in custod! roceedings ii. 8 state has &urisdiction o)er the custod! roceeding if the state was the child3s 9ho%e state: iii. 9Io%e state: is where the child li)ed for at least si( consecuti)e %onths i%%ediatel! before the filing of the custod! clai% i). Co"rt interpreted the DCC$EA to find a ;ho7e !tate< when a !i@%7onth period of re!idence wa! e!ta6li!hed within !i@ 7onth! of filin) (this hel s a)oid the roble% of li%bo). Delch,<oden ). #oberts (child at issue li)ed in 1for at least si( %onths and arent filed for custodial rights in 8M after onl! four %onths of li)ing there@ court held that 7< was the child/s home state and had exclusive jurisdiction over the custody issue) 1) >rah% ). 'u erior Court (father granted e(tended )isitation rights b! C8 court@ %other and child %o)ed out of C8 to ;J@ father sought full custod! rights in C8@ court held $# still had exclusive jurisdiction because the child/s absence from the state did not sever $#/s exclusive control ; the presence of the father in $# plus visitation rights and a relationship with the child created a sufficient connection to $# to retain exclusive jurisdiction) ;ote that this is onl! a jurisdictional. and not substanti)e. deter%ination@ custod! deter%ination cannot be %ade b! an! other court e(ce t the courts of the original state (unless there has been abandon%ent) e. 5arental -idna ing 5re)ention 8ct (relies on the =CCJ$8) i. <efines 9ho%e state: in the sa%e wa! ii. 5rohibits arents fro% hiding a child in a second state for si( %onths and then suing for custod! in that second state f. ;ote that these rules ha)e no effect on the validity of adoption i. 8n ado tion Bs a binding decree and gets full faith and credit e)er!where ii. Custod! decisions related to ado ted children would be treated &ust li*e custod! decisions for an! other children 2. International A6d"ction of Children a. Iague Con)ention i. 5re)ents abduction of children across international borders ii. +he place of habitual residence of the child a lies as the ro er )enue for child abduction cases 1) 1rdinaril!. 9 lace of habitual residence: is not difficult to deter%ine 2) +he difficult cases are u to the indi)idual state signatories to the con)ention to inter ret iii. Bf the child is ta*en to a lace other than the lace of habitual residence. the non,abducting art! %a! enter the new state to etition for return i). Dhen there has been on for%al ad&udication of custod! and one arents has ta*en the child to another countr!7 1) +he etitioning arent has no for%al custod! order and can onl! clai% 9 lace of habitual residence: "2

Conflicts of Laws Friedenthal Fall 2008 2) +he Iague Con)ention has an e(ce tion to the 9re%ed! of return: Bf there is e)idence that the child would be sub&ect to danger b! the non, custodial arent ). Balancin): B"ri!dictional li7it! 5er!"! intere!t! of the child 1) 1n one hand. the Iague Con)ention3s sco e is strictl! li%ited to deciding where a child should be so that the courts of the 9 lace of habitual residence: of the child can decide custod! 2) 1n the other hand. should the Iague Con)ention consider the child3s interests in being returned to that lace where the courts ha)e &urisdiction. but the child %ight be in danger? )i. Iow does the court of the new state get e)idence sufficient to %a*e a deter%ination as to re%ed! of return or an! a licable e(ce tions? 1) +he e)idence of ast or otential har% to the child is usuall! in the original countr! 2) 1ne argu%ent7 in these cases. the child should go bac* to the original countr! so that courts of that state can deter%ine custod! based on local and a)ailable e)idence ") 8nother argu%ent7 the first court should deter%ine the interests of the child before sending bac* to the lace of habitual residence )ii. Bf one !ear has assed since a child was abducted. that child is considered 9settled: and there is no %ore a)ailable re%ed! of return under the Iague Con)ention )iii. Bf a state has not signed onto the Iague Con)ention. then the laws of that state dictate how to resol)e international &urisdictional issues 1) =' anti,*idna ing laws %a*e arents who abduct children into the =' liable if the re%o)al of the child is not done ro erl! b. 6an de 'ande ). 6an de 'ande (%other esca ed fro% abusi)e husband in 4elgiu% to the =' with her child@ district court held Iague Con)ention is urel! &urisdictional and 4elgian courts are able to handle substanti)e custod! issue. so the child should be sent bac* to 4elgiu%@ appellate court gave more weight to consideration of welfare of child and reverse the return decision and remanded) /+his case re resents the funda%ental argu%ent regarding the inter retation of the sco e of the Iague Con)ention.0 C. Decedent!? E!tate! 1. 5robate o)er land %a! onl! be had in the lace where the land is located@ this %a! result in %ulti le robate roceedings for one estate 2. 8t co%%on law. courts would not recogniCe ad%inistrators a ointed in another state. so this resulted in %ulti le ad%inistrators a. +his rule has been *illed b! rules that er%it an ad%inistrator a oint at the decedent3s do%icile to sue and be sued where)er arts of the estate are located ". A pro6ate deci!ion! 7ade in one !tate )et f"ll faith and credit in an# other !tate B"!t liGe a nor7al B"d)7ent E. A !tate 7a# appl# it! own pro6ate law! to per!onal and real propert# con!i!tent with it! interests in the propert# and it! p"6lic polic#@ onl! &udg%ents are guaranteed full faith and credit G. 'tate courts rather than federal courts deal with do%estic %atters such as %arriage and decedents3 estates. $(ce tions7 a. +orts between husband and wife b. Aarshall ). Aarshall (Aarshall3s will left e)er!thing to his son@ +P court u held will3s ro)isions in robate@ '%ith filed ban*ru tc! in federal court@ son filed clai% as a creditor against '%ith and '%ith filed counterclai% for fraud (which would not ha)e been allowed during robate)@ '%ith ended u with L88 %illion deter%ined b! the federal courts) ""

Conflicts of Laws Friedenthal Fall 2008 (I. International Conflict! A. E@traterritorial &e)"lation 1. Le)i!lati5e $"ri!diction: the abilit! to a l! our own =' law to foreign defendants in both cri%inal and ci)il cases) a. +erritorialit! of the offense i. Bf the effect of the acti)it! elsewhere has an i% act within the territor! of a second state. the second state %a! e(ercise legislati)e &urisdiction o)er the offenders ii. De re2uire this within the ='7 if a erson co%%its a cri%e in one state and esca es to another. he will be e(tradited to the &urisdiction of his cri%e b. ;ationalit! of the offender i. +his ti%e of &urisdiction includes both the ower to act and the ower to a l! a state3s own laws to its national c. 5rotection of the national interest i. +he basis for e(ercising legislati)e &urisdiction %ust include direct effects on go)ern%ental interests d. =ni)ersal rinci le i. Ieinous cri%es onl! s ecified cri%es fall into this categor! ii. =nited 'tates ). Junis (Jordanian lane was hi&ac*ed in 4eirut@ hi&ac*ed lane contained a few =' citiCens@ one of the hi&ac*ers was found within the =' and charged with )iolations of =' laws rohibiting hostage,ta*ing and aircraft hi&ac*ing@ court found that territorial, national, and protective principles do not apply, but universal and passive personality principles do because hijac+ing and hostage2ta+ing are sufficiently serious crimes) e. 5assi)e ersonalit! rinci le based on the nationalit! of the )icti% (wea*est) i. +his won3t a l! e)er! ti%e a )icti% is a =' citiCen should be li%ited to terroris% and assaults on =' citiCens ii. Fro% the ers ecti)e of the defendant. %a!be the law is different in that countr! and the e( ectations of the defendant is that the laws of his state should a l! 2. Li7it! on E@traterritorial Application in International Law a. +he 'u re%e Court has addressed e(traterritorial conflicts )er! %uch li*e do%estic conflicts. with onl! additional considerations of custo%ar! international law and other general rinci les of co%it! b. <ue rocess li%itations i. Law a lied %ust ha)e a connection to the defendant in the case ii. +he a lication of the law cannot interfere with the 5resident3s ower to deal with foreign relations c% Extraterritorial application is really a conflicts issue: loo+ at the policy behind the statute to determine if it should apply abroad, and compare those policy interests with those of the laws of other countries ". Li7it! on E@traterritorial Application in DS Law a. $2ual $% lo!%ent 1 ortunit! Co%%ission ). 8rab 8%erican 1il Co. (8ra%co) (naturaliCed =' citiCen wor*ed for 8%erican cor . in 'audi 8rabia@ when he was fired. he argued that +itle 6BB a lied to his wor* abroad@ .upreme $ourt held 8itle 9II did not apply because the statute must clearly express congressional intent to apply extraterritorially in order to overcome the presumption against extraterritorial application) i. Case was dis%issed for sub&ect %atter &urisdiction. but should ha)e been dis%issed for failure to state a clai% since the statute si% l! did not a l! to alien wor*ers outside the =' ii. Congress a%ended +itle 6BB in res onse to this case %a*ing it a licable to aliens wor*ing for 8%erican co% anies "E

Conflicts of Laws Friedenthal Fall 2008 iii. 4ut see LauritCen (<anish sea%an was in&ured in a <anish shi in ort in Cuba@ he sued in ;J because he &oined the crew there@ .upreme $ourt did not rely on presumption against extraterritoriality but instead found that the relevant contacts ; nationality of parties, flag of ship, place of contract, interests of the forum ; weighed in favor of application of :anish law) b. +hird #estate%ent Q E0" i. 5ro)ides rules and li%itations on showing which law should be a lied ii. Dhere there is a true conflict. the court %ust decide which countr!3s interest is greater and a l! its own law (interest anal!sis a roach lus so%e balancing) E. Antitr"!t and E@traterritorialit# a. Iartford Fire Bns. Co. ). California (insurance and reinsurance co% anies agreed to set new ter%s for olic! for%s that were %uch %ore fa)orable to the insurers re&ecting un*nown ollution clai%s. setting li%its on the co)erage a%ount. and setting ti%e li%its on in&ur! occurrence@ the issue was whether the antitrust laws could a l! to 4ritish reinsurers) i. +here is clearl! &urisdiction because the 4ritish reinsurers acted in concert with =' insurers to affect the =' insurance %ar*et ii. 4ut as a %atter of olic! and choice of law. should the 'her%an 8ct a l! to those foreign co% anies? 1) Antitr"!t law! ha5e e@traterritorial application 6a!ed on ca!e law precedent rather than a clear !tate7ent of intention to appl# e@traterritoriall# (as re2uired b! 8ra%co) 2) +here is no conflict with 4ritish law because the 4ritish law did not compel the 4ritish defendants to artici ate in antico% etiti)e conduct (co% ulsion would ha)e triggered so)ereign i%%unit!Ka lication of co%it! rinci les) iii. <issent 1) +here would be a conflict as long as 4ritish laws authori@ed the defendants to act as the! did 2) Conflict rinci les re2uire an e)aluation as to whether the 8%erican antitrust laws were intended to a l! and if it was reasonable for those laws to a l! b. Ioff%an,La,#oche ). $% agra% (foreign citiCens sued in the =' under 'her%an 8ct alleging that foreign )ita%in roducers too* art in antico% etiti)e conduct that had effects in the countr! %ar*et of the foreign laintiffs@ .upreme $ourt held .herman #ct clearly did not reach this far; there had at least be an effect in the G. because adverse effects in foreign mar+ets is within the exclusive jurisdiction of those other countries ; even if companies/ conduct did have effects in the G., plaintiffs were suing purely on the basis of foreign effects) i. Dould a =' law a l! to a foreign result caused b! a =' art!? 1) Cases ha)e held that if the =' is the 9head2uarters: of the bad act. the =' will entertain suits based on those acts and a l! =' law to the acti)it! 2) 4ut see 'osa ). 8l)areC,Aachain (200E) (=' agents *idna ed 8l)areC,Aachain and brought hi% bac* to the =nited 'tates for trial on conduct he co%%itted in Ae(ico@ .upreme $ourt held the G. agents could be held liable for +idnapping even thought the effects were felt abroad) G. E@traterritorial Application of the Con!tit"tion a. +erritorial 8 roach7 =nited 'tates ). 6erdugo,=r2uideC (defendant charged with drug s%uggling and tried in the =' under =' drug laws@ <$8 wor*ed with Ae(ican authorities to search defendant3s ho%e in Ae(ico@ .upreme $ourt held the 3ourth "G

Conflicts of Laws Friedenthal Fall 2008 #mendment does not apply to property outside the G. in these circumstances ; aliens outside the G.) i. Fifth and 'i(th 8%end%ents a l! to aliens li)ing abroad. but Court distinguished that these a%end%ents (a) a l! to cri%inal defendants during trial. and (b) result fro% different historical circu%stances@ Fourth 8%end%ent co%es into la! before an indi)idual 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 the law ; whether the policy has any currency beyond the borders of the G. 2) $)en if the Constitution does not a l!. that does not %ean there is no law@ if the search is illegal under Ae(ican law. erha s we should a l! Ae(ican law to the search B. E"ropean er!pecti5e 1. Ci)il code s!ste%s are controlled b! statutes rather than recedent 2. 'tatutes establish hard,and,fast rules@ law!ers use their s*ills to argue for or against a lication rather than reinter retation of the rules ". +here are ga s and a%biguities in $uro ean statutes. but cases and co%%entators are ta*en with e2ual authorit! E. D ). As. D. (>er%an husband and Canadian wife %arr! in Canada@ the! %o)e to +P and beco%e naturaliCed =' citiCens@ the! continue to %o)e all o)er the world@ toward the end of the %arriage. the! %o)e to 'witCerland@ wife went to >er%an! and husband filed for di)orce in 'witCerland@ .wiss law applies to the divorce) a. =nder 'wiss law. if one s ouse is do%iciled in 'witCerland. 'wiss law a lies to di)orce b. 4ut if a husband and wife ha)e a shared nationalit!. the law of that nationalit! a lies (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 a lies (and in this case. the cou le hadn3t li)ed in +e(as for %an! !ears) C. Act of State Doctrine 1. In appropriate ca!e!9 a DS co"rt will not )i5e an# B"d)7ent that will o5ert"rn or conflict with an official deci!ion of a forei)n )o5ern7ent 2. So"rce and !cope a. +he 8ct of 'tate <octrine (8o') is not constitutional b. 'econd Iic*enloo er 8%end%ent atte% t to o)erturn 'abbatino. but courts ha)e the statute out of e(istence7 a lies onl! to ro ert! within the ='. not to e( ro riation of contractual rights (Iunt ). Aobil 1il) i. 4anco ;acional de Cuba ). 'abbatino (Cuba nationaliCed all 8%erican ro ert! located in Cuba including sugar@ 8%erican bu!er sought to bu! sugar fro% 8%erican owner of sugar rocessing lant@ bu!er contracted with Cuba after nationaliCation@ bu!er did not a! after Cuba shi ed the sugar ( aid original 8%erican owners instead) and Cuba sued to collect fro% the original owners@ original owners clai%ed nationaliCation )iolated international law@ $uba argued that G. courts cannot sit in judgment of an act of a sovereign nation with respect to matters ta+ing place within that nation; court dismissed for failure to state a claim) c. Funda%entall! art of co%%on law i. 4ased on certain olicies li*e an! other co%%on law doctrine ii. +erritorial so)ereignt! is at the heart of the olic! iii. Bs it a ublic olic! e(ce tion or a territorial olic!? Bf it is territorial. it is %ore li*el! to a l! %ore often because so)ereign nations clearl! act or do not act within their own borders "H

Conflicts of Laws Friedenthal Fall 2008 i). +his is usuall! a 2uestion for the courts as to whether 8o' a lies. but courts will ta*e into consideration the osition of the 'tate <e art%ent and the $(ecuti)e 4ranch in an! articular case d. 8o' focuses urel! on acts that affect another so)ereign nation i. D' -ir* atric* ). $n)iron%ental +ectonics Cor . (8%erican co% an! hired ;igerian citiCen to funnel %one! to ;igerian go)ern%ent officials in the for% of a bribe in order to obtain a contract to build a facilit! in ;igeria@ co% etitor sued co% an! for da%ages for loss of o ortunit! to co% ete for the contract@ bribing co% an! asserted 8o' <octrine as a defense@ court held that #o. could not serve as a defense because there was no act by a sovereign government; officials were disobeying the laws of that country) 1) 8)oiding an! e%barrass%ent on the art of ;igeria in being sued is not reall! the ur ose behind the 8o' <octrine@ the act itself &ust didn3t e(ist sufficient to in)o*e the doctrine 2) 'houldn3t we loo* at the underl!ing olic! with res ect to the idea of ro%oting di lo%atic relations? Bf the olic! is i% ortant. the e%barrass%ent factor does beco%e i% ortant and %a! o)erride the si% lified a roach the court too* here ii. AoS cannot 6e 6a!ed on the idea of protectin) other )o5ern7ent! fro7 e76arra!!7ent e. #e resentati)e(s) of the state who %a! i% ute beha)ior to the state usuall! %ust be so%eone who has the 9 ower of the state: behind hi% or her (real authorit!)@ does not necessaril! ha)e to be the resident or ri%e %inister f. AoS i! e!!entiall# a defen!e to a !"6!tanti5e ca"!e of action i. Bf the doctrine is &urisdictional. then arties can &ust go to another court ii. Bf the doctrine is a lied to the %erits. then the &udg%ent of the =' court on the %erits has so%e effect in other courts D. &eco)nition of Forei)n $"d)7ent! 1. Iilton ). >u!ot (%one! &udg%ent against a =' citiCen sought to be enforced in the ='@ .upreme $ourt held if 3rance will not recogni@e our judgments, we will not recogni@e theirs!) a. Thi! ca!e i! no lon)er the law7 )er! few courts will refuse to recogniCe foreign &udg%ents on reci rocit! grounds (%an! states ha)e assed laws to honor foreign %one! &udg%ents) b. Bf we thin* a &udg%ent is a )alid &udg%ent based on sound rocedure and rinci les. wh! shouldn3t we honor it? +his is the basis for the idea of international co%it!7 obligations to the international co%%unit! and recognition of the rights of the citiCens of the world. c. Bn re% &udg%ents (%arital status. ro ert!. etc.) i. +hese are %atters that should be recogniCed because the! are so funda%ental to the ordering of societ! d. Bn ersona% &udg%ents i. De should as* %ore 2uestions about these &udg%ents 1) <ue rocess? 2) Full and fair hearing? ") '!ste% of ro er &uris rudence? ii. De don3t as* these 2uestions about other =' &udg%ents (auto%atic recognition). Bf =' &udg%ent is lac*ing in rocedural fairness. the loser can a eal and we trust that a ellate rocess. Bs there reall! %ust difference between sister,state &udg%ents and &udg%ents fro% other ci)iliCed nations? 2. Defa"lt B"d)7ent! a. De should not enforce a &udg%ent of a foreign court when that &udg%ent was rendered in default because the defendant challenged ersonal &urisdiction b. 4ut what if the defendant was ser)ed and si% l! chose not to argue? "F

Conflicts of Laws Friedenthal Fall 2008 c. +he role of nationalit! i. 8 foreign countr! %a! e(ercise &urisdiction o)er an indi)idual who is a nationalit! of that countr! but %a! not be a resident of that countr! ii. +he =' e(ercises &urisdiction based on residence and do%icile rather than nationalit! iii. Dould the =' enforce such a &udg%ent based on nationalit! but not residence? +he =' would robabl! not recogniCe such a default &udg%ent where the national could not a ear in the foreign court. ". C"lt"ral difference! a. Dould the =' enforce a &udg%ent in a court that re2uired %one! bribes to a olitical official for the &udg%ent? b. Bt does not see% that the =' would enforce the &udg%ent. but if it is rocedurall! sound in all other wa!s. can we loo* below the &udg%ent to the cause of action itself to deter%ine if there is a sound basis for the &udg%ent? 'ee Fauntlero! ). Lu% (we %a! be re2uired to recogniCe a foreign &udg%ent e)en if it is against %oral olic!) c. 8%erican tort cases are not gi)en %uch credibilit! in $uro e because $uro eans find fault with the &ur! s!ste% and uniti)e da%ages E. Fra"d"lent B"d)7ent! a. Bn the ='. courts are s lit on whether &udg%ents %a! be set aside for intrinsic fraud (witness lied) b. 'o if there is no unifor% a roach in the ='. how do we handle foreign &udg%ents in nations with or without an intrinsic fraud rule? G. 4on%7one# B"d)7ent! a. =' in&unctions are difficult to enforce abroad b. 4ut we will enforce non,%one! &udg%ents in the =' if the &udicial s!ste% is rocedurall! fair

"8