Vested Rights and Governmental Interest Analysis

Ch.1 Introduction
A. The Subject Matter of The Conflict of Laws
 The multistate aspect of these cases can pose issues concerning (1) personal jurisdiction
(the jurisdiction of courts over nonresidents); (2) choice of law (the law to be applied to
people or legal entities from different states, or to events and transactions having contacts
with more than one state); and (3) the recognition and enforcement of foreign judgements
(judgements rendered by courts in other states and countries). Analysis of these issues is
often complicated by two features of our federal system: first, there is a federal court
system in addition to the state-court systems, and second, there is federal law making
authority-legislative, executive, and judicial-in addition to the states’ law making
authority.
B. The Elements of the Subject
1. Personal Jurisdiction
 When a state would not have sufficient contacts to allow it to exercise
“specific” long arm jurisdiction under modern personal jurisdiction doctrine,
the application of its law to decide the merits of the case may rise questions
under both local choice of law rules and the United States Constitution.
2. Choice of Law
 In the US, the authority of a court to choose or fashion a rule of law to
determine a controversy before it is, unless controlled by constitution or
statute, a matter of judicial reasoning.
3. Constitutional Limits on Choice
 Limitations on free choice of law by the states are principally imposed by the
Due Process Clause (as with personal jurisdiction) and the Full Faith and
Credit Clause, though in some cases the Equal Protection Clause, the
Privileges and Immunities Clauses, and even the Commerce Clause also limit
the states’ freedom to choose the applicable law.
4. State Law and Federal Law
 Valid federal law prevails because federal law, if valid, is “the supreme Law
of the Land”.
 The Erie Doctrine as a constitutional command, however, has broader
application than in diversity cases. Moreover, although the Federal Rules of
Civil Procedure have the imprimatur of congressional supremacy, they do not
speak to all issues in the management of litigation in the federal courts. Lastly,
there are areas of so-called Federal Common Law in which the federal interest
must be secured judicially because the text of the Constitution or an Act of
Congress is too remote from issue for the federal court to determine it as a
matter of textual interpretation.
5. Recognition and Enforcement of Foreign Judgements
 The Full Faith and Credit Clause speaks only to sister state judgements not to
foreign nation judgements. The Clause does not extend to federal judgments;
 however, it is clear that federal judgements must be given effect in other
courts by virtue of other provisions of the Constitutions. Generally speaking,
the full faith and credit mandate requires that the principles of finality under
the law of the state that rendered the judgement shall be recognized and
enforced in proceedings in other states.
 The recognition and enforcement of foreign-nation judgments are not covered
by the Full Faith and Credit Clause, but are governed by principles of comity,
which have developed as a matter of international law.
 Lastly, the Full Faith and Credit Clause includes "public Acts" within its
mandate and "such Acts” are also included in the current implementing
federal statute.
6. International Conflicts of Law
The term Private International Law, which prevails in Europe and has currency in
England, seems inapposite for the Conflict of Laws in this country. For this reason,
conflicts that do occur with the laws of a foreign nation in cases before American
courts are treated in this book according to their subject matter jurisdiction, choice of
law. judgments, etc., rather than in a separate chapter.

Ch.2 Choice of Law: Some General Problems

A. Selecting a Choice of Law Theory
 The "vested rights" theory- sometimes also called the "territorial" theory of
conflict of laws. As described in Chapter 1.C.4., the vested rights theory was
incorporated into the first Restatement through the efforts of Professor Joseph H.
Beale, its Reporter, and was vigorously criticized by the legal realist school of
jurisprudence from its inception.
 The Second Restatement is the dominant system in the United States.
 A few courts have adopted "impure" forms of a forum law approach. Modern
conflicts systems are sometimes said to have a bias in favor of the application of
forum law, and a few states, perhaps tiring of the conceptual and practical battles
of the conflicts revolution, have somewhat given in to the bias through adoption
of lex fori systems, although,, a "pure" lex fori system in which a state always
applied its own substantive law to multistate cases would run into constitutional
difficulties in some cases.
1. The Vested Rights Theory
 The basic premise of the vested rights theory is that the purpose of laws is to
create "rights" for the promotion or protection of certain "interests." These
rights are created, if at all, by the state in which a selected single event in a
transaction occurs the single event often being described as the "last act"
logically necessary to create substantive liability in a particular area, such as
the occurrence of an injury in a tort case. If the state (governmental territory)
in which the selected event occurs creates a "right" right was said to "vest."
Once a right became in an individual or legal entity, the individual's or legal
entity's "vested," all states had to recognize and enforce that right.
  Alabama Great Southern R.R. Co. v. Carroll- The law of the state where an
employee is injured determines whether the employee may recover against the
employer.
 Sturiano v. Brooks- The law of the jurisdiction where an automobile-
insurance contract is executed applies in a negligence action.
2. Currie’s Governmental Interest Analysis
 The first step in his analysis is to examine the policies and purposes reflected
in both the potentially applicable forum and foreign state laws to ascertain
whether each state has an interest in applying its law to resolve the
controversy.
 A court confronted with a "true conflict" should apply the law of the forum
because a court should promote the policies of its own state over those of
another state. When there is a "true conflict" and the forum is a disinterested
third state, the court should either apply the law of the forum, if it is similar to
the law of an interested state, or act as a "supreme legislative body" and
determine which interest should prevail.
 This was true of the first Restatement approach also, but only when the
process of categorizing issues resulted in classification of two kinds of issues
differently, such as some questions being classified as procedural and
governed by forum law and others being classified as substantive and
governed by the law of the state identified by the relevant "substantive"
conflicts rule, such as law of the state of the injury in tort cases. All modern
systems of conflict analysis that incorporate identification and evaluation of
state interests proceed in this fashion.
 Reich v. Purcell- The forum state is disinterested in a controversy if, at the
time of accrual, the plaintiff is not domiciled in the forum state and the injury
occurred in a foreign jurisdiction.
3. Cavers’ Principles of Preference
 His first principle states that when the liability laws of the state of the injury
set a higher standard of conduct or of financial protection against tortious
injury than do the laws of the state where the person causing the injury has
acted or had his home, the law of the state of the injury should be applied to
the case, unless the person injured was related to the person causing the injury
in such a manner as to refer the question to the law governing their
relationship. Cavers' second tort principle stated that when the state where the
defendant acted and caused an injury had a lower standard of conduct or of
financial protection than the laws of the state where the person suffering the
injury is domiciled, the laws of the state of the conduct and injury should
determine the standard of conduct or protection.

Notes:
The traditional rules for contracts, as found in the first Restatement of Conflict of Laws:
 The place of formation governs the validity and/or enforceability of the
contract.
 The place of performance governs the performance and/or breach of the
contract.
Currie’s three strands of governmental analysis:
 Strand One: The traditional approach was arbitrary in many cases. (e.g., in Carroll, if the
RR worker had been injured a few miles earlier in the route, then Alabama law would
have applied).
 Strand Two: Because courts were prone to using various “escape devices” to avoid the
application of harsh rules or unjust results, the traditional approach failed to achieve its
stated goals of predictability in application and uniformity of result: Characterization,
Substance vs. procedure, Public policy
 Strand Three: In the traditional cases, the rules often pointed to a jurisdiction that had no
policy interest in having its law applied. (e.g., in Carroll, Mississippi public policy would
likely care little about an injury to an Alabama resident by an Alabama company, where
the negligence that caused the injury occurred in Alabama.)
 If one of the two states has no policy interest in seeing its law applied, then no conflict is
presented. Rather, we have a “false conflict”—a case that looks like it presents a conflict,
but actually does not.
 “Apparent Conflict”- if both states have policy interests in seeing their law applied to the
case, in such cases, Currie recommended applying a restrained or narrow interpretations
to each of the conflicting policies, and seeing whether the conflict could be avoided. If so,
then here, too, we would be left with a “false conflict.”
 “True Conflict”- if a narrow or restrained interpretation is not possible, and the two
competing policy interests cannot be reconciled, in such cases, where the forum state is
one of the “interested” states, Currie suggested that the forum should apply its own
state’s law, as the forum state has an additional interest in being the location of the
resolution of the dispute.
 What if the forum state is not one of the states with a policy interest? There, Currie
suggested two things: First, if it is similar to that of one of the interested states, apply
forum state law because the forum state’s policy interests are aligned with at least that
one state’s policies. Second, if the forum state’s laws are not aligned with either
competing state’s, then the court should act as a “supreme legislative body” and select the
law that best protects the parties.
 “The unprovided for case”- if the analysis of competing policies reveals that neither/no
state has a policy interest that fits the dispute, in such cases, Currie suggested that the
 forum should apply its own state’s law

“Better Law” and Restatement 2nd

4. Leflar’s Choice-Influencing Considerations (which law is better)
  Professor Leflar proposed a list of five choice-influencing considerations as a
"working basis" for choice-of-law decisions. The five considerations are:
(1) Predictability of results;
(2) Maintenance of interstate and international order;
(3) Simplification of the judicial task;
(4) Advancement of the forum's governmental interests;
(5) Application of the better rule of law.
 Leflar's system is sometimes referred to as the "Better Law" approach because
of the fifth factor.
 Heath v. Zellmer- Applies the Leflar choice influencing considerations
5. The “Most Significant Relationship” Approach
 A few cases in the mid-1950’s resolved the controversy by determining which
state had the “dominant contacts” with the transaction. This approach was
frequently called the “center of gravity” or “grouping of contacts” test. The
R2 integrates policy and interest considerations into the “contacts” approach
and provides that the law of the state with the “most significant relationship”
to the parties and the transaction or occurrence should be applied to resolve
choice of law issues.
 Section 6 is entitled “Choice of Law Principles,” but its list is labeled as a list
of factors. The list consist of seven factors, which differ in their relevance
depending on the kind of issue that is involved:
a. The needs of the interstate and international systems
b. Relevant forum policies
c. Relevant policies of other states and the relative interests of those states in
determining the particular issue in question
d. The protection of justified expectations
e. The basic policies underlying the particular field of law
f. Certainty, predictability, and uniformity of result
g. The ease in the determination and application of the law to be applied
 Section 145(2) list nonexclusive contacts which are to be evaluated with
regard to their importance to the issue being decided:
a. The place where the injury occurred
b. The place where the conduct causing the injury occurred
c. The domicile, residence, nationality, place of incorporation, or place of
business of the parties
d. The place where the relationship, if any, between the parties is centered
 Townsend v. Sears, Roebuck, and Co.- In a products-liability design-defect
case, the law of the place of injury presumptively applies to issues of liability
and damages unless another state has a more significant relationship to the
occurrence and the parties.
6. Lex Fori Systems
 In a pure lex fori system, a court does not make a conflict of law decision, but
simply applies the law of its own state in all cases. In the United States, no
 state currently follows a pure lex fori system, and, indeed no state could
permissibly do so under the constitutional limits on choice of law placed on
the states by the US Supreme Court under the Due Process Clause of the
Fourteenth Amendment and the Full Faith and Credit Clause of the
Constitution. Even short constitutional restraints, however, the states
following lex fori approaches qualify them substantially.
 Only Michigan and Kentucky follow variations of lex fori approach
7. Eclectic Systems
 Courts in many states have a tendency to combine different conflict of laws
systems in deciding cases with multistate elements.
Caver’s Principles of Preference:
 Where the liability laws of the state of injury set a higher standard of conduct
or of financial protection against injury than do the laws of the state where the
person causing the injury has acted or had his home, the laws of the state of
injury should determine the standard and the protection applicable to the case,
at least where the person injured was not so related to the person causing the
injury that the question should be relegated to the law governing their
relationship.
 Where the liability laws of the state in which the defendant acted and caused
injury set a lower standard of conduct or of financial protection than of the
laws of the home state of the person suffering the injury, the laws of the state
of conduct and injury should determine the standard of conduct of protection
applicable to the case, at least where the person injured was not so related to
the person causing the injury that the question should be relegated to the law
governing their relationship.
 Where the state in which the defendant acted has established special controls,
including the sanction of civil liability, over conduct of the kind in which the
defendant was engaged when he caused a foreseeable injury to the plaintiff in
another state, the plaintiff, though having no relationship to the defendant,
should be accorded the benefit of the special standards of conduct and of
financial protection in the state of the defendant’s conduct, even though the
state of injury had imposed no such controls or sanctions.
 Where the law of the state in which a relationship has its seat has imposed a
standard of conduct or financial protection on one party to that relationship for
the benefit of the other party which is higher than the like standard imposed
by the state of injury, the law of the former state should determine the
standard of conduct or of financial protection applicable to the case for the
benefit of the party protected by that state’s law.
 Where the law of the state in which a relationship has its seat has imposed a
standard of conduct or financial protection on one party to that relationship for
the benefit of the other party which is lower than the like standard imposed by
the state of injury, the law of the former state should determine the standard of
 conduct or of financial protection applicable to the case for the benefit of the
party whose liability that state’s law would deny or limit.
 Where, for purpose of providing protection from the adverse consequences of
incompetence, heedlessness, ignorance, or unequal bargaining power, the law
of a state has imposed restrictions on the power to contract or to convey or
encumber property, its protective provisions should be applied against a party
to the restricted transaction where (a) the person protected has a home in the
state (if the law’s purpose were to protect the person) and (b) the affected
transaction or protected property interest were centered there or, (c) if it were
not, this was due to facts that were fortuitous or had been manipulated to
evade the protective law.
 If the express (or reasonably foreseeable) intention of the parties to a
transaction involving two or more states is that the law of a particular state
which is reasonably related to the transaction should be applied to it, the law
of that state should be applied if it allows the transaction to be carried out,
even though neither party has a home in the state and the transaction is not
centered there. However, this principle does not apply if the transaction runs
counter to any protective law that the preceding principle would render
applicable or if the transaction includes a conveyance of land and the mode of
conveyance or the interest created run counter to applicable mandatory rules
of the situs of th
The Second Restatement approach is the “most significant relationship” approach
Torts:
 Section 145(1) states that tort rights and liabilities are determined by the law of the state
with the “most significant relationship” with the dispute.
 Section 145(2) then lists 7 contacts to consider when determining which state that is. But
these contacts must be considered in light of 7 general factors that apply to all choices of
law under Restatement (2d), Section 6(2).
Contracts: This Part begins with a categorical rule and an exception. Section 187 states that
choice-of-law clauses will be enforced unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and
there is no other reasonable basis for the parties' choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy
of a state which has a materially greater interest than the chosen state in the determination of the
particular issue and which, under the rule of sec. 188, would be the state of the applicable law in
the absence of an effective choice of law by the parties.
Lex Fori (the law of the forum): Only Kentucky and Michigan use this approach, and there, only
for Torts. But as you will learn in a week or so, there are constitutional problems with a strict lex
fori approach.
Eclectic Approaches: In truth, if we consider all merged, hybrid, or eclectic approaches together,
that would be the majority approach in the United States.

Escape Devices: Substance and Procedure

B. Classifying Rules as Substantive or Procedural
1. Rules of Evidence
 Equitable Life Assurance Society v. McKay- A forum state uses its own
common law to determine whether a law at issue is substantive or procedural.
 Ford Motor Co. v. Leggat- An attorney-client communication that is
privileged under the law of the state that has the most significant relationship
with the communication but not privileged under the law of the forum state
will ordinarily be excluded from evidence if the parties reasonably relied on
the privilege when engaging in the communication.
2. Burden of Proof
 Levy v. Steiger- traditionally, burdens of proof were considered procedural
3. Statutes of Frauds
 The first Restatement in section 598 generally provided that forum law
determined whether a fact could be proved by oral evidence. However,
comment a to section 598 stated that a statute of frauds may either be a
procedural rule, or it may affect the formal validity of contracts made in the
state. The comment then went on to state that if the forum's statute of frauds
affected the formal validity of contracts in the state but was considered so
important as to be applicable to all cases adjudicated in the state regardless of
where the underlying transaction in a case took place, the forum's statute of
frauds would apply.
 The potential classification of a statute of frauds as either substantive or
procedural (or maybe both) can produce strange decisions, which can seem
absurd. The best known case demonstrating this point is Marie v. Garrison, 13
Abb. N. Cas. 210 (1883), in which Referee Dwight, who was the founder of
Columbia Law School, first determined that the statute of frauds of the forum,
New York, that made oral contracts "void" was substantive and hence
inapplicable because the contract had been made in Missouri. He then
examined the Missouri Statute of Frauds and found that it provided that no
"action shall be brought" upon an oral contract. He decided that this language
made the Missouri Statute of Frauds procedural, and hence it was not
applicable because Missouri was not the forum. The result was that an oral
agreement that was unenforceable according to the laws of the only two states
with any relation to the contract was enforced.
4. Statutes of Limitations
 The traditional view of a statute of limitations as a rule of procedure was
succinctly stated by the Supreme Court in Townsend: The rule in the courts of
the US, in respect to pleas of the statutes of limitation has always been, that
they strictly affect the remedy, and not the merits.
  If an action is barred by the statute of limitations of the forum, no action can
be maintained even if the cause of action is not barred by the statute of
limitations of the state where the cause of action arose. Section 604 then adds
that if an action is not barred by the statute of limitations of the forum, an
action can be maintained, though the action is barred in the state where the
cause of action arose. However, section 605 contains an exception to the rule
of section 604, but not to the rule of section 603. Section 605 states that if
under the law of the state that created the cause of action it is made “a
condition of the right” that it shall expire after a certain period of time has
elapsed, no action begun after the period has elapsed can be maintained in any
state.
 Sutherland v. Kennington Truck Service, Ltd.- In tort cases, the law of the
forum applies unless a rational reason exists to apply a foreign state’s law, and
a plaintiff’s residence in the foreign state is not a sufficient reason by itself to
apply foreign law.
 DeLoach v. Alfred- When confronted with a choice-of-law question involving
statutes of limitations, a court presumptively applies the law of the forum
unless the claim would be barred under the statute of limitations of a state that
has a more significant relationship to the matter.
5. Other Issues
 Should the issue whether attorneys' fees can be awarded to the winner of a law
suit be treated as substantive or procedural? Note that this question may
depend on whether the attorneys' fees are being sought as part of the damages
under the plaintiffs basic claim for relief or are being sought for some other
reason, such as a sanction under a rule like FED. R. CIV. P. 11. In the former
case, decision of the issue might be referred to the law governing the claim,
while in the latter instance, there would surely be a stronger tendency to treat
the have as more appropriately governed by forum law.
 What about the issue whether prejudgment interest is substantive or
procedural? Texas law governed issue of prejudgment interest under
RESTATEMENT (SECOND) significant contacts analysis; contacts counting
rather than proper RESTATEMENT (SECOND) analysis.
 What about post-judgement interest? In diversity action, federal rate for post-
judgment interest controls rather than state rate; parties may agree to a
different rate, but general choice-of-law clause does not alter the application
of the federal rate.
 Under "most significant relationship test" of RESTATEMENT (SECOND)
OF CONFLICT OF LAWS, Texas substantive law governed whether release
protected insurer, while Missouri law governed "procedural matters" such as
standards for granting summary judgment); also Phillips v. Carlton Energy
Grp. LLC, 475 S.W.3d 265 (Tex. 2015) (under Second Restatement, local law
of forum determines whether an issue shall be decided by judge or jury:
argument that Nevada which provided the controlling substantive law, has
 specified the procedure for adjudicating the issue and thus made it a
substantive right is invalid; a state cannot make a decision by a court rather
than a iury a sub-Stantive right enforceable in all jurisdictions; Nevada cannor
supplant the constitutionally guaranteed right to a jury trial in Texas courts by
a statute): Robinson v. crown Cork & Seal Co., 335 S.W.3d 126 (Tex. 2010)
(Texas statute shielding successor company of asbestos manufacturer applied
to foreign corporations; choice-of-law rules are procedural and subject to
change by courts or legislatures).
Notes:
Traditionally, in conflicts of law and private international law (the international term for conflicts
of law), a forum state’s courts are required to make a choice of law only as to substantive law. A
forum state’s courts can always apply their own state’s procedural law. So, the first opportunity
to get around the inflexible first Restatement rules was to characterize issues as procedural, thus
mandating the application of forum law.
What makes these particularly tricky in terms of the substance-procedure distinction? They are
part procedural (what evidence can be admitted to prove up a contract), and part substantive
(unwritten agreements for certain transactions are voidable, or in some states, invalid).
Traditionally and under the First Restatement, statute of Limitations have been viewed as purely
procedural
What would a pure “interest analysis” approach tell us? Very likely, that approach would land
where the others almost always do—on forum law, though it would not rely on such a formalistic
distinction between substance and procedure.

Categorization & Public Policy

C. Characterizing the Issues
 As with substance and procedure, the forum state’s conflict of laws system always
determines how a char The section goes on to provide that the classification of
issues or claims is generally performed under the forum's law (55.03 (2)), as are
the classification and interpretation of conflict-of-laws concepts and terms ($
5.03(3)) and the classification and interpretation of internal law concepts and
terms. (Renumbered as $ 5.04 in RESTATEMENT (THIRD) OF CONFLICT OF
LAWs (Council Draft No. 2, Sept. 12, 2017).) The exception to section 5.03(2) is
the new Restatement's employment of renvoi under certain circumstances ($5.04;
renumbered as $5.05 in Council Draft No. 2, supra).
 The classification and interpretation of internal-law concepts and terms are
determined in accord with the law that governs the issue in question (section
5.03(4)). Earlier, the draft defines "internal law" of a state as "the body of law,”
exclusive of the rules of Conflict of Laws, which the courts of that state apply in
the decision of controversies brought before them" (section 1.03(1).) It defines the
"law" or the “whole law" of a state as that state's internal law together with its
rules of Conflict of Laws (section 1.03(2)). In this respect, the draft differs from
 the RESTATEMENT (SECOND) which uses the term "local law," rather than
"internal law" to refer to the same body of law characterization is made.
 Grant v. McAuliffe- Whether a survival statute should be deemed to be
“procedural” or “substantive” depends on the particular nature of the issue
involving survivability.
D. Protecting the Forum’s Public Policy
 Many courts. However, have been unwilling to limit the public policy exception
in such a way. The difficult, if not impossible, task is one of predicting when a
court will conclude that a foreign law is contrary to local public policy. Perhaps
the most serious objection to the public policy exception is that it provides a
substitute for analysis and obstructs the development and clear statement of policy
in conflicts.
 Alexander v. General Motors Corporation- In analyzing a choice-of-law question
in a personal-injury action, the law of the place where the injury occurred is
generally applied, subject to a public-policy exception if a foreign law is radically
dissimilar.

Depecage & Renvoi

E. Using Depecage
 Definition: the practice (though some say just the result) of considering choice-of-
law problems issue-by-issue, rather than case-by-case.
 The process of resolving different issues in the same case by applying the law of
different states to the different issues has acquired the label dépeçage, which in
English means “cutting up”. For example, it is technically proper only to a
process of applying different laws to resolve different substantive issues involved
in a single claim in tort. Thus, it is not technically applicable, for example, to the
application of different laws govern the substantive and procedural issues in a
single case.
 Simon v. United States- If the relevant choice-of-law factors are fractured and do
not conclusively lead to one clear result, the law of the jurisdiction where the
negligent conduct occurred will control.
F. Coping with Renvoi
 Normally, a state always applies its own conflict of laws rules or system. Renvoi
is an exception to that normal practice. However, in unusual cases, often
involving land titles, the objective forum may be to reach exactly the same result
that the state where the land is located would reach on an issue. When this is so,
the forum may refer to the “whole law” of the situs state, which means to its
conflict of laws system as well as its internal law.
 American Motorists Ins. Co. v. ARTRA Group, Inc.- Courts in the forum state
may apply the forum state’s own substantive law to contracts entered into in other
states if the forum state has the most significant relationship to the issue presented
and if the choice-of-law rules of the state in which the contract was entered into
would call for application of the law of the forum state.
Notes:
It is dépeçage to apply different states’ laws to different issues within a single tort claim (e.g.
liability and damages, or liability and an affirmative defense).
Recall that the FTCA requires the federal court hearing the case to apply the “whole law” of the
place where the injury occurred.
“Whole law” means the substantive law of the state, including its conflict-of-laws approach. By
contrast, a state’s substantive law, other than its choice-of-law rules, is termed the “internal law”
of the state (i.e., that which it would apply to a purely internal, or in-state, dispute).
It is part of each state’s choice-of-law system to determine whether it chooses the “internal law”
or the “whole law” of other states.
Example of the general problem of renvoi: Where a state’s choice-of-law approach chooses the
“whole law” of another state, it is possible that the other state’s choice-of-law approach will
“choose” the forum state’s laws, thus “sending the choice back” to the forum state. If that other
state is also a “whole law” jurisdiction, then the forum state will once again apply its choice-of-
law rules, which will “choose” that other state’s “whole law” again!

Establishing Domicile; Proving Foreign Law

G. Ascertaining A Person’s Domicile
 Governmental interest analysis, while discarding the rigid rules of the vested
rights system, tends to correlate state interests with the domiciles of the litigants.
 Lea v. Lea- Looks to the formal test of domicile, which is determined whether the
person still have a connection to the state that bonds them to their (such as wife
and kids)
 Pratt v. State Tax Commission- This case interprets the test of (1) presence; with
(2) an intent to remain indefinitely
H. Proving Foreign Law
 The traditional English common law rule has been that the party with the burden
of proof must plead and prove the elements of foreign law that make out the claim
or defense. Note that, by “foreign” law here, we mean the law of any jurisdiction
other than the forum—including the law of other U.S. states.
 Leary v. Gledhill- Instead of dismissing a case for failure to plead and prove
applicable foreign law, the forum court may assume that such failure constitutes
the parties’ acquiescence in having the forum court apply forum law, common or
statutory, to resolve the parties’ conflict.

The Full Faith and Credit Clause & Due Process Clauses
Ch.3 Choice of Law: Some Constitutional Problems
A. The Full Faith and Credit and Due Process Clauses
1. The Full Faith and Credit Clause
  Bradford Electric Light Co. v. Clapper- Where the law of a foreign state in which
both parties are based provides a defense to the plaintiff’s cause of action in the
forum state, and where application of the foreign law would not offend the forum
state’s public policy, the Full Faith and Credit Clause requires the forum to
recognize the defense.
 Pacific Employers Ins. Co. v. Industrial Acc. Comm'n- Where both the law of the
forum state and the law of a foreign state are constitutionally enacted and
applicable to the subject matter at hand, the forum state may apply its own law if
application of the foreign law would offend the forum state’s policy.
 Wells v. Simonds Abrasive Company- The Full Faith and Credit Clause does not
compel a forum state to use the statute of limitations of the state in which the
cause of action accrues.
 Carroll v. Lanza- Full faith and credit does not require the state court where a
foreign worker was injured while working for a foreign employer to follow the
workers’-compensation laws of the worker and employer’s home state to the
exclusion of forum-state law that would permit a common-law action against a
third party.
2. The Due Process Clause
 Home Insurance Co. v. Dick- A state statute violates due process where it
purports to establish rights and duties of parties who have no connection to
such state.
 Clay v. Sun Insurance Office, Ltd.- Full faith and credit does not require a
state to interpret an insurance policy held by a resident according to the law of
a foreign jurisdiction.
Notes:
The full faith and credit clause does something different for each sentence of it: The first makes
it obligatory on the states to give full faith and credit to other states’ “public acts, records, and
judicial proceedings.” The second grants Congress the legislative power to prescribe the manner
of proving these official acts, and their “effect” (i.e., what full faith and credit entails).
The “Sovereign Immunity Cases.”
 Each of these cases (Nevada v. Hall in 1979; Franchise Tax Board v. Hyatt three times, in
2003, 2016, and 2019) involved arguments that the courts of one state must apply the
sovereign immunity doctrines of another state, when the sister state’s officials are sued by
private parties in the forum state.
 Hall involved a CA suit against a UNLV employee for a car accident in CA. The Court
held that, because CA had a constitutionally sufficient interest in applying its own law,
the sovereign immunity doctrine of NV need not be applied.
 Hyatt II (2016) was an appeal from that judgment.
 Sitting with 8 justices (this was just after Justice Scalia’s death), and that Court
vacated the judgment.
 The Court split 4-4 on whether Hall should be overruled.
  But the Court rejected the NV court’s decision not to apply the NV statutory cap
on damages in cases against government officials, on the ground that it only
applied (by its terms) to actions against NV officials.
 The Court held that this treatment exhibited a “policy of hostility to a sister state’s laws,”
a phrase that came out of earlier cases, but had not yet made the difference in a SCOTUS
case.
 Hyatt III (2019) was an appeal from the judgment on remand.
 Here the Court finally overruled Hall, holding that the opportunity for a state to
assert its sovereign immunity in a sister state’s courts is an integral element of the
structure of the Constitution.
 So, the case was not decided on Full Faith & Credit grounds, but the two main
opinions referenced the doctrine of rejecting “a policy of hostility to a sister
state’s laws.”

Convergence & Additional Theories

3. Convergence?
 Allstate Ins. Co. v. Hague- If a forum state has, in aggregate, significant
contacts with the litigants and the underlying events, it may apply its own law
without violating the Due Process or Full Faith and Credit Clause.
 Sun Oil Company v. Wortman- A forum state may constitutionally apply its
statute of limitations to claims governed by the substantive law of a different
state.
B. Other Constitutional Clauses
1. The Equal Protection Clause
 Hughes v. Fetter- Where an injury occurs outside of the forum state but the
forum state has personal jurisdiction over the parties and provides a cause of
action similar to the foreign action sued upon, the forum may not prohibit its
courts from exercising jurisdiction over the foreign cause of action on public
policy grounds.
2. The Privileges and Immunities Clause
 Supreme Court of New Hampshire v. Piper- States may discriminate against
rights of out-of-state residents as long as there is a substantial reason for the
difference in treatment, and the discrimination practiced against nonresidents
bears a substantial relationship to the state’s objective.
3. The Commerce Clause
4. Foreign Affairs and Separation of Powers
Notes:
Allstate plurality steps:
 Step 1: the Court cannot tell states what choice of law system to adopt. A set
of facts may justify the application of more than one state’s law to a dispute or
issue.
  Step 2: To satisfy both the FF&C and DP Clauses, the forum state must have a
“significant contact or aggregation of contacts, creating state interests, with
the parties and the occurrence or transaction.”
 Distinguishing Dick and Yates as cases where the forum states both
had “one insignificant contact,” the plurality holds that MN has
sufficient contacts to create state interests sufficient to apply MN law
here.
The Dormant Commerce Clause.
 A negative implication of the policy set up by the Commerce Clause—to foster a national
market for goods and services—is that states may not actively interfere with that market.
 The test is twofold:
 If a state law discriminates against out-of-state individuals (either in
purpose or effect, unlike the P&I and EP Clauses, which cover only
purposeful discrimination), there is a presumption that the law is
unconstitutional, overridden only if the law is justified by an important
state purpose.
 If the law does not discriminate, it is still unconstitutional if it:
o Does not effectuate a legitimate state interest; or
o Places burdens in interstate commerce that
The Act of State Doctrine.
 The acts of a sovereign within its own territory are conclusively valid, and no other
nation may inquire into their validity.
 However, principles of international law override this doctrine, and Congress has passed
a statute empowering U.S. courts to inquire into acts of state that violate international
law.

Vertical Choice of Law

 Shady Grove Orthopedic Assoc. v. Allstate Ins. Co.- A state law that prevents
certain types of damages from being pursued via class action may not limit
federal class actions that satisfy the requirements of Federal Rule of Civil
Procedure 23.
Notes:
So, in summary:
 If a federal court is hearing a state-law case based on diversity jurisdiction or
something like it, the federal court must apply state law as the “rules of
decision” that determine who wins on the merits.
 If state law conflicts with a FRCP, then the Court determines whether the
FRCP preempts state law by asking whether the rule “really regulates
procedure.”
  If state law conflicts with actual or potential federal common law, then the
court determines whether state law is “substantive enough” to prevent the
development of federal common law by asking whether, if federal and state
law were different, a party would rationally choose federal court over state
court, or vice-versa, because of the difference.
What does this mean for the application of vertical choice of law principles going forward?
 Most cases are easy, like Erie and Hanna.
 Some cases are more like Shady Grove or Gasperini. In these cases, make arguments at
each of the two points of dispute:
 Argue that the scope of the FRCP is broad enough or not broad enough to create a
conflict.
 Even if there is a conflict, argue that the rule either has to be considered only on
its face, or both on its face and as applied.
 Remember that the default analysis is the RDA analysis.

Erie & Horizontal Choice of Law

C. Horizontal Choice of Law Under Erie
 Under Swift the federal courts exercised independent horizontal choice of law
authority in diversity cases-that is, a power to determine which state’s law was
applicable in a diversity action in which some state’s law concededly
controlled.
 In Erie, the court assumed that the New York federal court would apply the
substantive law of Pennsylvania where the accident occurred to resolve the
case.
 Klaxon Co. v. Stentor Electric Manufacturing Co.- Where its jurisdiction is
founded on diversity, a federal court must apply the conflict-of-laws rules of
the state in which it sits.
 Van Dusen v. Barrack- Under 28 U.S.C. § 1404(a) governing changes of
venue, a transferee district court must apply the state law that would have
been applied if there had been no change of venue.
 Ferens v. John Deere Co.- When a plaintiff transfers a case from one venue to
another under 28 U.S.C. § 1404(a), the choice of law rules of the transferor
jurisdiction apply.
D. Ascertaining State Law
 Once we determine that state law should apply to an issue in federal court, what
should the court do if state law is unclear? The general approach is for the court to
make an “Erie guess”: to use all available legal research resources to predict how
the issue would be resolved in the state.
 In that case, it may be possible for the federal court to “certify a question” to the
state supreme court. As you may recall from Con Law, federal courts are not
permitted to render advisory opinions, must many state constitutions and statutes
permit them in this limited case. There is a Uniform Certification Act (p. 749,
 middle), which some states have adopted, but others have their own locally
drafted policies, and certification is forbidden in a small number of states.
E. Federal Common Law After Erie
 Good definition of “federal common law” on p. 753, top: “Any federal rule of
decision that is not mandated on the face of some authoritative federal text
(Constitution, statute, rule, regulation, etc.).”
Notes:
Erie and the RDA say that federal courts have to apply state substantive law in state-law suits
that end up in federal court.
Are state choice-of-law principles substantive or procedural?
 Procedural aspect: judicial methodology for figuring out what standards apply to the
merits.
 Substantive aspects: considerations of policy, forum interests, and whether to apply the
“whole law” of a chosen jurisdiction.
“Reverse Erie”
 Where federal common law is validly made and governs, a state may not apply its own
law to frustrate federal common law in the state’s courts.
 This principle even extends to federal procedural law in some cases.
 The test (as we see in the three cases discussed on p. 758, note 6(b)-(d)) is that
state procedures that operate to “substantially burden” a remedy provided by
federal law must yield to federal law.
o The test ends up looking like Hanna’s modified outcome determinative
test in most cases, just in reverse.

Basic Preclusion
Ch.9 Judgements
A. Review of Basic Preclusion Rules
B. Enforcement of State Judgements
1. The Full Faith and Credit Implementing Statute
 The Full Faith and Credit Clause of the Constitution provides that Congress
may, “by general laws, prescribe the Manner in which” the public “Acts,
Records, and judicial Proceedings shall be proved and the Effect thereof.”
 Implementing statute: “And the said records and judicial proceedings
authenticated as aforesaid, shall have such faith and credit given to them in
every court within the United States, as they have by law or usage in the
courts of the state from whence the said records are or shall be taken.
 The “same effect” rule of the Mills case still controls under the implementing
statue, although the Supreme Court has had to qualify and condition the rule
in numerous respects.
 2. Basic Rules and Exceptions
 Only a few rules, such as the rule invalidating state judgements for lack of
personal jurisdiction over nonresident defendants are unchangeable by
Congress.
a. Basic Rules
 Conglis v. Radcliffe- (“Same Effect Rule”) The NM court, under
the FF&C Act (this courts says the FF&C Clause) must give the
judgment the effect it would have in TN, unless the judgment is
not valid (i.e., lacked PJ or SMJ, or was procured through fraud on
the court). Note that this registration process is an alternative to the
common law method—filing a domestication action. But the
“same effect” rule applies in either one.
 Treinies v. Sunshine Mining Company- The Full Faith and Credit
Clause does not permit the judgment of a court of competent
jurisdiction to be collaterally attacked in an interpleader action.
 Fauntleroy v. Lum- A court in one state must give effect to the
rulings of an out of state court, even if those rulings constitute
mistakes of law.
Notes:
In a suit which involves more than one state, or which is against an out-of-state defendant, or
which is against an in-state defendant with most of their property out of state, or which results in
an injunction requiring or foreclosing conduct in another states, or any combination of the above:
 The plaintiff must “domesticate” the judgment in the state where it will be
enforced.
 This means obtaining a court order that converts the out-of-state judgment
into an in-state one.
The rules of the FF&C manifest themselves in three contexts:
 The defense of claim preclusion.
 Merger and bar.
 To establish the affirmative defense, one must prove the following elements:
o A prior litigation that resulted in a valid, final judgment on the merits.
o A second suit between the same parties.
o The second suit involves the same claim(s).
 Valid.
o Rendered with PJ and SMJ, with proper service, and not procured by
extrinsic fraud (e.g., perjury, spoliation of evidence).
 Final.
o Decided as a final matter—not necessarily the same as final for the
purposes of appeal. But decisions on appeal are generally considered final
for the purposes of claim and issue preclusion.
  On the merits.
o The claim was resolved with prejudice—not on some procedural ground
that allows for refiling.
 An argument for issue preclusion.
 An effort to enforce a judgment in a state other than the state in which it was rendered.
Claim Preclusion
Same claim.
 The test for this is the same in most jurisdictions as the test you learned for permissive
joinder under Rule 20, for compulsory counterclaims under Rule 13, and for
supplemental jurisdiction under 28 USC sec. 1367(a):
 Did the claims arise from the same transaction or occurrence?
o Most courts evaluate this by asking whether there is a “logical connection”
between the claims.
 Important: this test includes within the ‘same claim’ both claims that were asserted in suit
1 and claims that could/should have been asserted.
Same parties.
 This basically means that the same two human beings or entities are litigating suit 2 as
litigated suit 1.
 But Taylor v. Sturgell (2008) laid out six ways in which a person or entity can be the
same “legal” person or entity as another:
 A contract to be bound.
 A substantive legal relationship (privity).
 Adequate representation.
 The non-party controlled the prior litigation.
 Proxies for bound parties.
 Statute forecloses future litigation by non-parties.
Issue Preclusion
Operates to preclude re-litigation of an issue that has already been decided against an opposing
party.
 We say that the opposing party is “collaterally estopped” from contesting the issue again.
 Usually comes up in a dispositive motion (e.g., MSJ), or in a motion in limine.
Elements:
 Prior suit between the same parties (including the Taylor exceptions);
 Where a right, fact, or issue,
 Was actually litigated and actually decided,
 And was necessary to a valid, final judgment (not necessarily on the merits).
One interesting feature of the ‘same parties’ requirement in issue preclusion is that in most states,
and under federal common law, it only applies to the one preclusion is being used against (i.e.,
the party who will be “estopped” from litigating).
Understanding this, the Supreme Court, in Parklane Hosiery v. Shore (1979) held offensive, non-
mutual issue preclusion to be within the court’s discretion, considering whether these bad
incentives were present.
Key Questions in both “defensive” and “offensive” non-mutual issue preclusion:
 Which party is the one the court is being asked to estop from re-litigating a settled issue?
 Was that party bound by the judgment in suit 1?
 If yes, then the party can be estopped, subject to the consideration of bad
incentives in the “offensive” case.
 If no, then the party must be given their day in court.
The “Same Effect” Rule
The doctrine of judgment enforcement consists of:
 The FF&C “same effects” rule;
 Exceptions to that rule;
 The federal common law of federal judgment enforcement; and
 Foreign judgment enforcement, which carries its own common law rules.
Direct attack—an appeal or other post-judgment proceeding in the rendering court (or appeal to a
higher court), seeking relief from the rendering court’s rulings or judgments, such as reversal,
vacatur, remand, or release from judgment.
Collateral attack—a challenge to the validity of a prior judgment in a second proceeding in a
different court.
The “last-in-time” rule. The court which renders the last judgment about the validity of a prior
judgment is the one entitled to FF&C, even if it is later shown to be mistaken or wrong!
How should one correct a wrong decision about the SMJ of a prior court? Directly attack the
ruling in suit 2 by appealing it.
The basic rule: You can’t collaterally attack the judgment in a prior suit simply on the theory that
it was wrong.

Exceptions: Public Policy, Personal Jurisdiction, and Subject Matter Jurisdiction

b. Exceptions and Potential Exceptions to the Basic Rules
 When a court cannot exercise personal jurisdiction over a
nonresident defendant consistently with the Due Process Clause of
the Fourteenth Amendment, any judgement that it renders is void
(assuming that the personal jurisdiction objection is properly
reversed). This means the judgement cannot be given effect in the
 state where it is rendered, and, of course, cannot be given effect in
other states under the “same effect” command of the implementing
statute. In contrast, if the Supreme Court were to recognize a
general or special public policy exception to sister state
judgements, that would be a “true” exception to the “same effect”
command.
(1) General and Special Public Policy Exceptions
 Wamsley v. Nodak Mutual Insurance Co.-
(2) Lack of Personal Jurisdiction
 Assertion of personal jurisdiction over a defendant in
violation of due process can render a judgement void in
the state where it is rendered as well as unenforceable
in other states.
 Baldwin v. Iowa State Traveling Men’s Association- A
party may not challenge the judgment of a court in
another state by asserting a lack of personal jurisdiction
after it has already appeared in that state to challenge
jurisdiction.
(3) Lack of Subject-Matter Jurisdiction
 Fall v. Eastin- Where, in accordance with a court
decree, a deed to land in another state is executed by a
court-appointed agent, a court in the state where the
land is located need not give effect to the deed.
 Durfee v. Duke- Under the Full Faith and Credit
Clause, a state court’s judgment on subject matter
jurisdiction is entitled to res judicata effect in other
state and federal courts if the question was fully and
fairly litigated in the original court.
Notes:
In enforcement, because of the policy of interstate uniformity, and due to the reliance interests
created when a party wins a judgment, public policy cannot be used to deny FF&C.
SMJ
The same basic rule applies to SMJ as to PJ: either can be the basis to refuse FF&C in suit 2, but
if the party seeking to deny FF&C had the opportunity to litigate the issue in suit 1, then he may
not collaterally attack the judgment in suit 2.
 The difference is that (in the U.S.) SMJ cannot be waived. So, there is a question whether
suit 1 should be preclusive on SMJ if no party, nor the court, ever brought up the issue.
 As with PJ, if the defendant did not show up, then he can collaterally attack SMJ in suit
1.
In some cases, even where the defendant has shown up to defend suit 1, he may still be able to
collaterally attack SMJ in suit 2:
 Where the lack of SMJ was so obvious as to make out an abuse of power in the suit 1
court;
 Where the lack of SMJ in the suit 1 court infringes the sovereignty of another forum (e.g.,
where the property that is the subject of suit 1 is located in another forum);
 Where the judgement in suit 1 was made by a court lacking the ability to determine its
own SMJ, and procedural fairness warrants an opportunity to be heard (this will be the
case with some specialized courts).

Other Exceptions to Judgement Enforcement

(4) Fraud
 Levin v. Gladstein- Equitable relief is available against
enforcement of a judgment from a sister state based on
grounds that the prior judgment was procured by fraud.
(5) Statutes of Limitations
 McElmoyle v. Cohen- if read literally, it would be a
violation of either Equal Protection or the Privileges
and Immunities Clause because it explicitly
discriminates against out-of-state judgment creditors.
But it has been interpreted since then to be a simple
question of whether a state can have a statute of
limitations for enforcement actions or not, ignoring that
the SC SOL was longer than the GA SOL in the case.
(6) Judgements Based on Penal Laws or Governmental Claims
 Huntington v. Attrill- For purposes of granting full faith
and credit to a foreign state court’s judgment, it is up to
the enforcing court to determine whether the prior
judgment was penal and, thus, cannot be enforced in the
courts in another state, and the test is whether the intent
of the foreign law was to punish an offense against the
public or to afford a private remedy to one injured by
the wrongful act.
(7) Administrative Adjudications
 Thomas v. Washington Gas Light Co.- The Full Faith
and Credit Clause does not prevent a state from issuing
a supplemental award of workers’ compensation to a
person who received an earlier award for the same
injury in another state.
(8) Nonfinal and Modifiable Judgements
 Bard v. Charles R. Myers Insurance Agency, Inc.-
Notes:
Extrinsic v. intrinsic fraud:
 Extrinsic: perpetrated on the court and/or the parties to influence the proceedings (bribing
witnesses, lying to a party to convince them not to show up and defend, etc.).
 Intrinsic: fraud is part of the cause of action (cause of action such as fraudulent
misrepresentation, fraudulent inducement of a contract, etc., and (in most courts)
evidentiary issues such as perjury and spoliation, which can theoretically be corrected in
the trial). This latter category is controversial (and in an earlier lecture, I placed the
evidentiary matters in the “extrinsic” category) because it is not practical to expect that
many trial courts will become aware of these kinds of fraud in time to affect the
judgment.
 FRCP 60(b) abolishes the distinction and allows relief from judgment (direct attack)
based on fraud of any kind.
Penal Judgements
 Huntington approves an exception to the “same effect” rule for “penal” judgments “in the
international sense.” This sense is drawn from the private international law doctrine that
declines to apply foreign law if it is penal in nature—meaning it imposes punishment for
a crime against the public, as distinguished from providing a punitive sanction as a
remedy in a private suit.
Administrative Adjudications
 Thomas- Rather, today, the rule is that administrative agency adjudications do not stand
on the same footing, for FF&C purposes, as court decisions (p. 847-48).

Enforcement of Federal and Foreign Nation Judgements

C. Enforcement of Federal Judgements
D. Enforcement of Foreign Nation Judgements
 Nicol v. Tanner-
Notes:
Under the Restatement, U.S. federal courts will refuse to enforce a foreign judgment if:
 It was rendered without basic procedural protections, such as due process;
 The rendering court did not have jurisdiction; or
 The judgment was for defamation, and the applicable law in the foreign nation is
inconsistent with the federal SPEECH Act (note 14, p. 881).
 This Act, which applies to both state and federal courts, basically requires that any
foreign defamation judgment comport with the law of the First Amendment and the state
constitutional law of the state where it is to be enforced.
The Restatement (4th) also allows U.S. courts to decline enforcement on a discretionary basis:
 If there was not sufficient notice;
 If the judgment was obtained by fraud;
  If the judgment violates the policies of the United States or the forum state (this is what
we used to use for defamation before the SPEECH Act was enacted);
 If the judgment conflicts with another final judgment that has priority (federal common
law of preclusion applies here);
 If the judgment violated an agreement (like a forum selection clause);
 If the judgment was in a place that was a forum non conveniens, and service was made in
hand within that nation;
 If there is substantial doubt about the court’s integrity;
 If the proceeding was fundamentally unfair (e.g., no cross-examination rights); or
 If the foreign nation’s courts would not recognize a U.S. judgment.
 So, reciprocity is still alive in federal enforcement, but is a discretionary factor.
In diversity cases, the lower courts are in broad agreement that the law that applies is the law of
the state in which the federal court sits. What would a “diversity” enforcement action look like?
It would likely be an alienage case, with one or more parties from another nation on the opposite
side of the “v” from an American citizen, and an AIC of more than $75,000 reflecting the
judgment to be enforced.
But if we are thinking of enforcing money judgments, the ultimate law that will have to apply as
to enforcement procedures is state law. There is no repository of federal property law. Property
rights are found in state law, so that is where any judgment must ultimately be enforced. Thus,
there is a danger of forum shopping for the enforcement question, understanding that the state
one is shopping-away from will be the state where the property will ultimately be found.
Exceptions would be matters such as federal deposit accounts, federal pension plan assets, a
vessel “arrested” on the high seas, etc.
Notes 10, 11, and 16 flesh out the main landscape of international judgment enforcement today
—bilateral and multilateral treaties.

General Personal Jurisdiction

b. General and Specific Jurisdiction
(1) General Jurisdiction
 Helicopteros Nacionales de Colombia, S.A. v. Hall- If
the cause of action does not arise out of or relate to the
foreigner’s activities conducted within the forum state,
the state may not exercise personal jurisdiction over the
foreigner if the general business contacts by the
foreigner with the state are not sufficiently continuous
and systematic.
 The Court evaluated the contacts and held that
“mere purchases,” even if accompanied by some
intensive customer service (the training), did not
rise to the level of “continuous and systematic”
 contacts sufficient to make Helicol “present” in
TX.
 Goodyear Dunlop Tires Operations, S.A. v. Brown- A
state court may not exercise general jurisdiction over a
foreign subsidiary of a United States-based corporation
unless it engages in such continuous and systematic
activities as to render it essentially at home in the forum
state.
 Daimler AG v. Bauman- A court can assert general
jurisdiction over a corporation if the corporation’s
affiliations with the forum state are so continuous and
systematic as to render the corporation at home in the
state.
Notes:
World Wide Volkswagen v. Woodson (1980) clarified that “minimum contacts” include only the
defendant’s own purposeful actions.
WWVW also, in dicta, suggested several factors courts might consider in determining whether
PJ was “reasonable” (the touchstone of due process by then):
 The burden of the defendant defending the forum.
 The interest of the forum state in the case.
 The plaintiff’s interest in getting relief
 The systemic interest in “efficient resolution of controversies and fundamental
substantive social policies”

Specific Personal Jurisdiction

(2) Specific Jurisdiction
 Burger King Corp. v. Rudzewicz- When determining if a
defendant satisfies the minimum contacts requirement for
personal jurisdiction, the court must look to the
purposefully directed activities of the defendant toward the
forum state and whether the harms arising out of or relating
to those activities are the cause of the litigation.
 Asahi Metal Industry Co. v. Superior Court- Exercising
personal jurisdiction over an alien defendant is
unreasonable and unfair if the burden on the alien
defendant from being required to defend itself in a foreign
court outweighs the plaintiff's and forum's interests in the
forum state's assertion of jurisdiction.
  J. McIntyre Machinery, Ltd. v. Nicastro- For a defendant to
be subject to a state’s personal jurisdiction, it must
purposefully avail itself of the privilege of conducting
activities within the forum State, thus invoking the benefits
and protections of its laws.
 Walden v. Fiore- Personal jurisdiction may not be
exercised over a nonresident civil defendant if the
defendant’s sole contact with the forum state is knowledge
that the defendant’s tortious conduct committed outside the
forum state has an effect on the plaintiff in that state.
Notes:
International Shoe (1945), as you recall, found jurisdiction to exist over the company because it
had continuous and systematic contacts with the forum, and the cause of action arose from those
very contacts.
The International Shoe analysis, as refined, now has three steps:
 Minimum contacts with the forum state;
 Relatedness of those contacts with the dispute;
 Weighing of factors to determine the reasonableness of exercising jurisdiction in light of
the contacts (this step has been invoked to deprive a court of PJ, but never to grant it in
the absence of sufficient contacts and relatedness).
What “counts” as a contact? Five familiar “patterns” emerge from the cases:
 Defendant personally (or through an agent) goes to the forum state and takes an action (or
fails to act), which leads to litigation (Shoe).
 Defendant sends its products into the state directly (e.g., mail-order sales) (Shoe,
Keeton).
 Defendant sends its products into the state indirectly (i.e., through the “stream of
commerce”) (Asahi, Nicastro).
 Defendant reaches out to the forum state (through whatever communicative means) to
form a contractual relationship with someone in the forum state (McGee, Burger King).
Presents challenges in terms of “purposeful” conduct and “contact” with the forum state. But
most Internet problems can be resolved through traditional methods (e.g., analogy to the phone
or mail).

Grounds for Declining Personal Jurisdiction

C. Grounds for Declining Jurisdiction
1. Forum Selection Clauses
 The Bremen v. Zapata Off-Shore Co.- A forum-selection clause in a contract
for an international transaction should be enforced unless it is shown that
enforcement would be unreasonable and unjust.
  Carnival Cruise Lines, Inc. v. Shute- A forum selection clause is not
fundamentally unfair solely because the clause was not negotiated.
2. Forum Non Conveniens
 This is a doctrine that permits a court, in its discretion, to dismiss a case if the
forum is a seriously inconvenient place for the litigation to proceed.
 Kamel v. Hill-Rom Co.-
3. Penal and Governmental Claims
 This set of doctrines has some similarity to that in the area of enforcement of
judgments, where U.S. courts will not enforce the criminal or revenue
judgments of other sovereigns. Much of this case law focuses on criminal law,
and here as well, states will not prosecute individuals for violations of other
states’ criminal laws.
 Republic of Philippines v. Westinghouse Electric Corp.-
4. Dissimilarity and Public Policy
5. Local Actions
 This doctrine comes out of Livingston v. Jefferson (1811), in which the VA
court declined to exercise PJ over an alleged trespass to land in LA. Where it
exists today, it applies to actions concerning rights in real property. The
federal Jurisdiction and Venue Clarification Act of 2011 abolished the
doctrine as a matter of federal venue.
 Trust Company Bank v. United States Gypsum Co.- This is merely an
example of a federal court applying a state’s rejection of the doctrine, and
retaining jurisdiction based on that rejection, but also considering some carve-
outs in that rejection, and concluding that the present case, a product liability
action, does not fall under them.
Notes:
Rule 4(k)(1)(A) is the rule that connects up state longarm statutes with PJ in federal courts. It
states that PJ will exist if the defendant is subject to PJ in the state where the federal court sits.
Rule 4(k)(2) is, in effect, a federal longarm statute that applies only to foreign defendants. It
states that, where a claim is brought under federal question SMJ, and there is no judicial district
within the U.S. where PJ can be obtained in any individual state, PJ can be exercised anywhere
in the U.S. federal court system, as long as that is “consistent with the Constitution.” This has
been interpreted to mean that PJ would need to be consistent with the Due Process Clause of the
5th Amendment, which applies to the federal government.
Finally, Rule 4(k)(1)(C) authorizes PJ in the federal courts if a federal statute authorizes it, and
such PJ is consistent with the Constitution (the 5th Amendment). This rule comes in handy when
one wants to use one of the many federal statutes that contain personal jurisdiction provisions
(most of which do not mention personal jurisdiction specifically, so the rule makes that
connection).
Personal jurisdiction gives a court power over the individuals (or in an “in rem” case, the
property) involved in the dispute, but it does not necessarily require the court to exercise that
power.
Forum selection clauses: As we discussed yesterday in comparison with the choice-of-law clause
found in the Burger King contract, a forum selection clause requires the parties to file any action
arising out of the contract in a particular location. Note that, since SMJ is a matter of the court’s
own determination of its power, the parties cannot negotiate for claims to be filed only in federal
court, or only in state court. But they can negotiate for, say, the federal or state courts embracing
the city of San Antonio.
Stewart Orgs. v. Ricoh (1988) holds that, for the purposes of determining whether a transfer is
warranted, a federal court may take into consideration a forum selection clause, even if the state
in which the court sits would not enforce the clause.
Piper Aircraft v. Reyno (1981), which dismissed a case filed in CA and transferred to PA, where
it was based on an airline accident in Scotland and filed on behalf of the survivors of the
deceased, all of whom were Scottish citizens.