Conflict of Laws Outline

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CONFLICT OF LAWS OUTLINE
1) Introduction
a) Generally
i) Forum usually applies its rules as to how to resolve conflicts.
ii) Most of the time, a forum will decide to apply its own law.
iii) Domiciliary is more specific term than residence, can only have one domicile-place
intend to be permanent home (subjective view, even if they are not there).
iv) Only matters which law we choose if laws are different-otherwise the issue is moot
and forum law would be applicable.
v) Conflicts issues are often overlooked and people assume forum law will apply. There
may be a conflicts issue but people assume laws are the same. It is also a complicated
topic. If recognize in advance that there will be a conflicts issue, then parties can
choose which law will govern when contracting and most courts will honor this.
vi) 3 Pillars of conflicts
(1) Preliminary to court proceeding-which court should/can exercise jx. If court is
able, should it do it
(2) Choice of law-arises when we have an ongoing court proceeding; issue is which
law should court apply
(3) Recognition and enforcement of judgments. What happens to judgment, i.e., res
judicata, collateral estoppel, full faith and credit clause in sister state judgments
(does not reach foreign nation judgments)
vii) Conflicts is also called private international law (outside US)
(1) Vertical conflicts-federal government vs. state govt-governed by supremacy
clause (only comes into effect if fed govt has authority to legislate in particular
area and if it has actually done so and intends to occupy the field). Mostly dealt
with in federal jx.
(2) There are conflicts between states
(3) Foreign countries vs. states or federal govt. (US law vs. EU or English law or CA
law vs. Hong Kong law). In a case where the state is dealing with a foreign
country, the court will treat it the same way as if it was a state vs. state conflict.
(4) Rules change depending on the forum-will have rules re: jx and choice of law.
viii) There is some interplay re jx and choice of law
(1) Old view was that only 1 court should be able to exercise jx in any given dispute.
(a) i.e., Old rule was that had to go to home of D in order to sue D. Even now this
is always an appropriate forum. Does not necessarily mean that that forums
law must govern (territorial dispute).
(2) New view is that can sue in other places depending on sufficient presence, etc.
(3) Underlying goal is that forum selection should be irrelevant as to choice of lawnot encourage forum shopping.
(4) Every forum has ability to choose different conflicts rules and many of them have.
2) Choice of Law
a) The Traditional Approach (The First Restatement)
i) Jurisdiction-Selecting Rules Torts (Lex Loci Delecti)
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(1) Alabama Great Southern RR v. Carroll: Torts case. Personal injury COA.
Alabama court in 1892. Court is affected by traditional conflicts theory (Beale, 1st
restatement)
(a) Place where right vests/injury occurs and this is the law that governs. The
occurrence of this localizing event creates vested rights defined by the law of
that place so that courts everywhere must enforce those rights.
(i) In theory this is good b/c it suggests only 1 jx has authority to vest right
and we would not be faced with a CoL. However, in practice this is not
easy and might be somewhat arbitrary (especially in US with close
borders). Outcome is different, depending on where the accident occurs.
Case is between Miss and Alabama law. Alabama is forum in this case.
(ii) Substantive laws:
1. Alabama-employer liable (employer liability act).
2. Miss-Employer not liable (fellow servant rule)-old rule
(iii)
Conflicts rule-Lex loci delicti is place of injury. Law governing
tort is place of injury (Miss). Alabama conflicts rule, but court applies
Miss. law.
(iv) Result-court applies Miss law; employer not liable. Why should Alabama
entertain this case at all? Full faith and credit requires it. Alabama cannot
say it would never apply Miss. Law, but it is also clear that Alabama does
not always have to apply Miss. Law; there are a lot of Alabama
connections (both D and P live in state); Comity notions there could be
times when it is a better for an Alabaman to bring a suit in Mississippi
(v) Limits of the territoriality theory
1. A sovereign should be free to regulate within its own borders, but not
outside its borders
2. But if that is true, how can Alabama be made to apply Mississippi law?
Civil claims are regarded as transitory. There is a distinction between
territoriality at the level of primary conduct, and at the level of
enforcement
(vi) Vested Rights-Courts enforce rights that are created at the place where the
event is localized. Those rights are thus governed by the law applicable
where the localizing event occurred
(2) Fitts v. 3M: Airline crash case. More connections to Alabama than Florida.
(a) Substantive laws
(i) Alabama-generous recovery
(ii) Florida-less generous recovery. May have this b/c people travel to Florida
and state may not want to protect non-Floridians who are not familiar with
the law.
(b) Conflicts rule-Lex loci delecti-defined as law of the place of crash (Florida)
(c) Result: Al court reaffirms lex loci delecti and applies Florida law. This is
unusual b/c there is a tendency for courts to apply its own law. This is to the
detriment of Alabama citizens. This shows that we cannot completely dispense
with territoriality. Lex loci delicti may be especially fortuitous in airline
crashes. Difficulties and arbitrary outcome in territory rules-One of the main
benefits to having this approach is that they are supposed to lead to
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predictability and uniformity of application. However, predictability as a goal

does not always happen.
ii) Jurisdiction-Selecting Rules -- Contracts & Misc. Areas
(1) Milliken v. Pratt-Mass-forum. Issue is what law governs capacity to contract?
Place where making of the K is where it is deemed to be done. Unilateralcommencement of performance acts as acceptance of K, therefore performance
given is where K is said to be done. Case demonstrates difficulty in localizing
exact place of K.
(a) Substantive law
(i) Mass: W cannot enter into K (K invalid)
(ii) Maine: W capable of K (K valid)
(b) Conflicts rule: lex loci contractus: defined as law of place of last act necessary
to make a binding K
(c) Result: Court assumes a unilateral contract, concluded when the promisees
(Millikens) acted upon the promisors (Mrs. Pratts) promise; K thus
concluded in Maine and valid. Mass. had changed law in the interim and
under current Mass law k would be valid. If it was bilateral K-then Pratt in
Mass could have said I will give you $10 for flour, Milliken in Maine could
say ok. Then this would be a valid K made in Maine. However, it could also
be made in Mass: Pratt said how much for flour, Milliken says $10 and then
Pratt says sold. Then the K would be deemed to be made in Mass and contract
would be invalid.
(2) Linn v. Employers Reinsurance-PA is forum. Issue is formal validity (statute of
frauds)-bilateral K
(a) Substantive law
(i) PA: no writing required (K valid)
(ii) NY: writing required (contract valid)
(b) Conflicts Rule: lex loci contractus-defined as law of place from which
acceptance was spoken.
(c) Result: TC: K made in NY; k invalid because no writing. Linn #1: Court
remands to determine from which state acceptance was spoken. Linn #2:
Court upholds k under forum law because unable to prove acceptance
spoken from NY. P bears burden of proof of establishing existence of K. Court
says there clearly is a k, and D must show it was not in PA and they cannot, so
court assumes PA b/c it is the law of the forum. Court says that the theory of
telephone conversations it should be where it is heard, not where it is spoken.
Reason why court says it is where acceptance is said is b/c it is possible that
the phone call could be dropped or the other person may not be heard
(3) 1st Restatement
(a) 332: Questions of contract validity are governed by the law of the place of
contracting.
(b) 358: Questions of contract performance are governed by the law of the place
of performance.
(c) 311: The law of the forum decides as a preliminary question by the law of
which state questions arising concerning the formation of a contract are to be
determined. . . .
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(5)
(6)
(7)
(8)
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(i) Law of the forum decides if looking at K formation (what it means to have
a K formed)
(ii) 311 Comment: Under its Conflict of Laws rules, in determining the place
of contracting, the forum ascertains the place in which, under the general
law of Contracts, the principal event necessary to make a contract occurs.
1. Restaters assumed forum would apply general CL of Ks in
determining where K is formed, but real issue is what it views as the
defining act in the making of the K
Depaage: Where some of the COA can be cut up and different pieces can be
governed by different laws. US courts do not like to do it very often.
Place of the making of the K covers capacity, form, accent, etc. Milliken involves
capacity and Linn involves form.
If performing K in a state-presumed to need the laws of the state in order to
perform, more so than formation. This seems more important
Rome Convention (EEC Convention on Contractual Obligations) Art. 9
(a) A k concluded between persons who are in the same country is formally valid
if it satisfies the formal requirements of the law which governs it under this
Convention or of the law of the country where it is concluded
(b) A k concluded between persons who are in different countries is formally
valid if it satisfies the formal requirements of the law which governs it under
this Convention or the law of one of those countries
Rule of validation-when people enter into K they want to have binding K. So try
to apply law that will lead to a binding K
Land is special. Territorial limitations are exacerbated when land is involved.
Cannot move land into other jx. Territorial considerations attached to land are
stronger that to place of tort, place of K, etc. Law of the place where land is
usually trumps
b) Escape Devices
i) Characterization
(1) Generally
(a) Ways judges have found to escape bad result emanating from strict application
of the territorial rules. Way court manipulates law in order to manipulate
outcome.
(b) Jx selection rules are blinds as to outcome in theory.
(c) Domicile-every person has at all times has 1 domicile and cannot have more
than 1 at the same time. Once established, a domicile continues until another
one is established. In order to acquire a new domicile, a person must establish
a dwelling place with intention of making it his home (mental and physical
elements must coexist at the same time)
(i) Domicile is important here b/c of family law issue and usually this
governs family relationships
(d) Courts escape localization rules adopted by first restatement. Court may want
to escape rules b/c of occasional happenstance nature of the result. (accident
takes place on 1 state, not another that is very close and result is different).
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(e) Also there is a sense of unfairness. Jx-selecting rules are not supposed to take
into account the outcome, but it happens and this leads them to try to get to a
different result.
(f) Characterization is not always an escape devise, it is a necessary part of court
proceeding. It is when it is used in a manipulative way that it is an escape
devise. We are skeptical b/c there are no rules court to apply to see which
claim has supremacy. Court does this b/c of assessment of reasonable
expectations of the parties.
(g) Characterization Steps
(i) 1st step is to characterize issue court is addressing
1. Is it a tort, K, etc?
2. What are the connecting factors?
3. Where does COA arise?
4. What is applicable law?
(h) Three steps for escape devises:
(i) Characterization
(ii) Localization
(iii)
Application
(2) Alabama Great Southern RR v. Carroll: Characterization Q. Issue: Is
employer liable for injury caused to P by negligence of Ps fellow servants?
(a) Substantive laws:
(i) AL: Employer liable (employer liability act)
(ii) Miss: Employer not liable (fellow servant rule)
(b) Conflicts rule-Lex loci delecti is place where injury occurred (MS); lex loci
contractus is place where K was made (AL)
(c) Result: Court rejects characterization as a K matter. P was trying to argue he
made K in Alabama and was governed by laws of AL. K incorporated laws of
AL and therefore, wherever K was applicable contained those laws and
protections that came from those laws. Court did not want to consider it a K
issue.
(3) Levy v. Daniels U-Drive-Court here is opposite of Carroll. K made in CT and K
issue. K governed by CT and therefore CT laws apply to the matter. Issue: Is
rental car company liable for injury sustained by plaintiff as a result of negligence
of drive to whom company rented the car?
(a) CT forum. Court deciding under CT whether K or tort. If it is a tort, it
occurred in Mass, and therefore governed by Mass law. It is reasonable to
think that rental company would be liable when it is rented in CT. This seems
fair from point of view of the D.
(i) Goals that state adopted-look to what their aims are. If they are not
furthered by applying the law, then statute points to certain direction.
(ii) Legislature not only concerned with protecting safety of its own highways,
but also concerned with its loss allocation-CT residents and CT is
concerned with protecting its residents.
(iii)
Depends on the concern of the statute-is it conduct-regulating or
loss-allocating?
(b) Substantive law
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(i) CT: Rental co is liable by special statute

(ii) Mass: Rental co. not liable unless it rented a defective vehicle, which is
not the case here
(c) Conflicts rule: lex loci delecti points to Mass. Law, but lex loci contractus
points to CT law.
(d) Result: Court says it is a K case. CT statute gives injured person a right of
action directly as a consequence of the contract of hiring. Purpose was to
protect the safety of traffic upon the highways by providing incentive to rental
company to rent to competent persons. Statute makes liability of person
renting part of every rental car k in CT; this k made in CT.
(4) Haumschild v. Continental Casualty-Insurance K. Wisconsin is the forum. On
holiday in CA. Court faced with Q as to which law applies. Issue: Is H amenable
to suit for injury caused to his W?
(a) Conflicts rule: lex loci delecti points to CA law but lex domicilli (for family
law matters) points to Wisconsin law
(b) Substantive laws
(i) CA: Husband is not amenable to suit (interspousal immunity)
(ii) Wisconsin: Husband amenable to suit (no interspousal immunity)
(c) Result: Court separates out tort and looks at issue narrowly. Call it a family
law matter and this moves case back to Wisconsin. This is a reasonable
outcome b/c it enhances predictability-H expects to be governed by law in
which the marital relationship is governed. Court looks at cases as tort matter,
then looks at CA law and breadth to send matter to Wisconsin.
(5) Folk v. York-Shipley: DE is forum. Loss of consortium case. Is action for loss of
consortium available? P argues localization If this is a tort action, then it
involves an injury to the marital relationship, and that injury occurred in DE
where the marital relationship is centered. P also argues Characterization This is
a matter of family law and as such is governed by the law of the family domicile,
DE.
(a) Substantive law:
(i) DE: Loss of consortium action available. Wife would recover
(ii) PA: Loss of consortium action not available. Wife would not recover
(b) Conflicts rule: Lex loci deliciti points to Pennsylvania Law, but if issue is
characterized as one pertaining to marriage, then lex domicilii rule points to
Delaware law
(c) Result: Court rejects both of Ps arguments and holds that the question is
purely one of tort and as such is governed by the lex loci delicti, PA. No loss
of consortium action. Tort in PA, if issue is characterized as one pertaining to
marriage it would point to DE law.
ii) The Substance/Procedure Distinction
(1) Generally
(a) The forum applies its own procedural rules b/c of practicality, convenience
and cost Avoidance
(b) Use of substance/procedure distinction
(i) First step in choice-of-law process-Laws to govern procedural matters;
depositions, service of process, etc.
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(ii) Matter of characterization-Issue characterized as one of procedure; e.g.

Grant v. McAuliffe
(c) How much of the foreign law applies-Foreign law governs -- e.g. Mass. Law
re: torts in Kilberg (place where accident happened) but only those parts that
are deemed substantive
(d) Examples of Rules (Usually) Viewed as Procedural
(i) Methods of serving process;
(ii) Matters of pleading and the conduct of proceedings in court
(iii)
Proof in court of a fact alleged as well as presumptions and
inferences to be drawn from evidence (if courts have different rules re:
weight of evidence might effect outcome and thus substantive effect)
(iv) Limitations of forum law on extent of recovery
(v) Statutes of limitations* (often viewed as substantive -- more on this later)controls access to court (procedural). As jx measure (substantive).
(vi) Right (substantive) vs. remedy (procedural) distinction
(2) Grant v. McAuliffe-CA (forum) s (injured passengers), Nominal
(administrator), Deceased tortfeasor, Tortfeasors estate; accident in AZ. Issue:
Whether a tort action survives the tortfeasors death?
(a) Substantive rules:
(i) CA: Action survives tortfeasors death
(ii) AZ: Action does not survive tortfeasors death
(b) Conflicts rule: Lex loci delicti points to AZ law, but if the issue is
characterized as procedural, or as one involving the administration of estates
then CA law applies as the lex fori or as the law of the state where the estate is
located
(c) Result: Court characterizes issues as procedural and applies lex fori;
alternatively, ct characterizes issue as one of admin. of estates and applies CA
law on that ground.
(3) Kilberg v. Northwest Airlines: NY: s (survivors), airline, Deceased victim,
Ticket purchase, Beginning of round trip flight; accident in Mass. Issue: Amount
of recoverable compensatory damages.
(a) Substantive law
(i) NY: Damages limitations are prohibited
(ii) Mass: Damages are limited by statute to a maximum of $15,000
(b) Conflicts rule: Lex loci delicti points to MA law, but if the issue is
characterized as procedural (or as substantive but contractual), then NY law
applies
(c) Result: Court finds MA limitation to be offensive to NY public policy and
thus in applicable and characterizes issue as procedural in order to apply the
lex fori. Court went further here b/c decisions grounded on public policy are
iffy. Court is trying to change conficts law they are using-trying to shift the
thinking.
(4) Marie v. Garrison-NY (forum) & place of promise. Missouri: Place of
acceptance, Land that is the object of the K, . Issue: Whether the K made was
valid as to form (Statute of Frauds)
(a) Statute of frauds:
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(i) NY (forum): Every contract [involving land] shall be void unless the
contract . . . be in writing
(ii) Missouri: No action shall be brought on a ck involving land unless k is
in writing
(b) Conflicts law: Lex loci contractus points to MO law, but only MO substantive
law
(c) Result: Referee holds that MO SoF is inapplicable because it is procedural;
NY SoF is inapplicable because it is substantive. Contract is thus valid!
(5) Vest v. St. Albans Psychiatric Hospital-hospital malpractice case. Hospital is in
VA; forum is WVA, where P is citizen. Issue: Whether lawsuit should be allowed
to proceed in light of a VA statute that requires review by a medical panel before
resorting to the courts?
(i) West VA (forum): Lawsuit may proceed no requirement of review by
med. panel
(ii) VA: Lawsuit may not proceed until plaintiff satisfies statutory requirement
of review by a medical panel
(b) Rule: If VA statute is substantive, it applies under the lex loci delicti; if statute
is procedural, court need not apply it.
(c) Results: Court characterizes VA statute as procedural (controlling access to VA
courts) and refuses to apply it. VA appeals court ruled the opposite, but here
WVA could still rule the way it wanted to b/c it is considered an advisory
opinion b/c the appeals court was split. Purpose of review panel plays a factor
in considering this case (if it is procedural or substantive). Acts as procedural
hurdle-so maybe it limits claims. Unless this is effective, the substantive goal
of protect health care providers seems like it would help VA courts. If WVA
had a review panel, the court may have gotten out if it by saying the panel
could not rule on a VA medical malpractice issue and that this would be a
substantive issue and not procedural in order to get around it.
(d) Dissent says that it is blatant protectionism of WVA resident in conflict with
lex delecti rule.
(e) Posner suggests that appropriate Q to ask is what the purpose of the rule is.
(i) Is it concerned with accuracy and economy in litigation? Then it is
procedural
(ii) Is it concerned with channeling behavior outside the courtroom? -- Then
it is substantive
iii) Renvoi
(1) Generally
(a) Internal law excludes a jurisdictions conflicts rules
(b) Whole law includes a jurisdictions conflict-of-laws rules
(c) Usual an escape device in CL system
(d) Only arises when different states have different conflicts rules
(e) REMEMBER procedure cant be renvoied
(2) Estate of Wright-Place where renvoi comes up is property law. Property is tied to
territory and it does not move. One of few rules that all jx agree on is that the state
where the property sits can dictate anything relating to property (sale, etc.) even if
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decedent does not want it to be. Maine is forum and place where will is written;
land is located in Switzerland. Issue: what will be done with property in
Switzerland b/c it has a right to control? Rest of estate will be governed by Maine
law. Issue: whether testators children are entitled to a forced share against his
will.
(i) Maine (forum): Testators will prevails; children are not entitled to forced
share
(ii) Switzerland: Children are entitled to a forced share. Testators will is
invalid to extent it denies them that share
(b) Conflict law:
(i) Maine: (Treaty) Succession to immovables is governed by the law of the
situs; does law include choice-of-law rules
(ii) Switzerland: Succession is governed by law of domicile (Switzerland).
BUT a foreigner may, through a choice-of-law clause, subject his state to
his national law (subject to exceptions; e.g. arts. 17 & 18 of treaty)
(c) Result: Court concludes (1) law in the treaty includes conflicts rules; (2)
Swiss conflicts rules permit the testator to choose governing law (3) Maine
law governs and children get no forced share. Court says treaty applies to the
whole law. Court justifies itself by saying that other Swiss decisions are not
binding and that the treatys purpose is to ensure that Americans living in
Switzerland are treated as well as the Swiss. Court said that if treaty was given
effect the way children were arguing it would put them at a disadvantage to
other foreigners. Swiss citizens are limited-they cannot disinherit their
children. If the purpose is to treat US citizens as well as Swiss, this is not
necessary. Ct. really compares Americans to other foreigners-but he does not
say this is the goal of the treaty. Purpose of concluding treaties is to avoid
these kind of Qs b/c court did not really analyze the treaty as it normally
would.
(3) American Motorists v. ARTRA-MD forum: Insured factory and contamination.
IL: Insured, Insurer, Insurance K. Issue: Whether the insurance contract obligates
the insurer to provide coverage?
(a) Substantive Law:
(i) MD: Coverage not provided, because contamination would not be
considered sudden and accidental
(ii) IL: Coverage provided, because contamination would be considered
sudden and accidental
(b) Conflicts law:
(i) MD: Lex loci contractus rule leads to IL law
(ii) IL: Under Restatement (2nd), IL would apply MD law b/c its the location
of the insured risk-MD has more significant relationship than IL
(c) Result: Court adheres to lex loci contractus but adopts a limited renvoi
exception, which permits it to consider IL conflicts law. Assuming IL law
would refer matter back to MD, MD ct applies MD substantive law denying
coverage and dismissed. Often courts are outcome-driven. Judges who are
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trying to move things forward when they do not have full agreement on their
court do this too (as in ARTRA case)
(4) Braxton v. Anco Electric -NC-forum, P, Ps employer, Employment Relationship,
D (other employer); VA: accident. Issue: Whether, after having received workers
comp. through his own employer, P is entitled to a tort action against another
employer, D, who, under VA law, would also be considered Ps statutory
employer and thus would be immune from tort liability
(i) NC: D is not Ps statutory employer. Thus D is not responsible for WC
coverage, but is liable in tort. P may recover in tort
(ii) VA: D employer is Ps statutory employer. D is responsible for WC
coverage, but is immune from tort liability. P may not recover in tort
(b) Conflicts law:
(i) NC: Lex loci delicti leads to VA law; but the NC WC statute suggests
application of NC law
(ii) VA: Under similar circs., VA did not apply VA law but applied law of the
state of the employment relationship
(c) Result: Ct acknowledges lex loci delicti, but focuses on NC WC statute, and
concludes it has to apply the statute. NC law also applicable for public policy
reasons. Finally, court employs a renvoi rationale: VA would apply NC
law; why shouldnt NC apply its own law? Renvoi as confirmatory rationale
here. Basis of decision is that it is a NC court and legislature has directed that
workers comp statute applies. Also talks about public policy.
iv) The Public Policy and Penal Law Exceptions
(1) Loucks v. Standard Oil (1918)-NY-forum, Ps (survivors), Deceased Victim, D.
Mass: accident. Issue: Whether the Massachusetts wrongful death statute is
offensive to NYs public policy.
(i) NY: unlimited damages
(ii) Mass: Damages limited by statute to a maximum of $10,000 and minimum
of $500.
(b) Conflicts law: Lex loci delicti points to MA, but if MA statute is offensive to
NY public policy it doesnt apply
(c) Result: Not repugnant to public policy. Damages limitation plays no role in
this assessment. Until late 19th century there was no wrongful death recoverystatutorily created. D is fighting this case b/c they are doing business in every
state and wants Ps to go to state of the accident-limit liability if it is more
difficult for Ps to sue. P says NY should not enforce MA wrongful death law
b/c this would violate public policy. Court says that the 2 laws are not very
different. Court did not want public policy requirement easily met.
(d) Court gives us the standard test for public policy exception:
(i) Applicable if the foreign law
1. offends our sense of justice or menaces the public welfare; or
2. Shock[s] our sense of justice; or
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3. Violates some fundamental principle of justice, some prevalent

conception of good morals, some deep rooted tradition of the common
weal
(2) Kilberg v. Northwest Airlines-Issue: Amount of recoverable compensatory
damages. We already know they will apply the Mass. law
(i) NY: Damages limitations are prohibited
(ii) Mass: Damages are limited by statute to a maximum of $15,000
(b) Conflicts law: Lex loci delicti points to MA law, but if the issue is
characterized as procedural (or as substantive but contractual), then NY law
applies
(c) Result: Court finds MA limitation to be offensive to NY public policy and
thus in applicable and characterizes issue as procedural in order to apply the
lex fori.
(3) Owens v. Owens-SD-forum, Ps domicile, Ds domicile, Car registration; Indiana:
Accident, P and D temporary residence. Issue: Whether P, who was injured in an
Indiana accident while riding as a passenger in a car driven by her husband, D,
should recover against him (and his insurer) in light of the Indiana guest statute,
which would deny recovery
(i) SD: No guest statute P recovers
(ii) Indiana: Guest Statute P does not recover
(b) Conflicts law: Lex loci delicti points to Indiana law, but if that law is
repugnant to SD public policy it should not be applied.
(c) Result: Court reiterates lex loci rule, but finds Indiana guest statute repugnant
to SD public policy and applies SD law. Ct. also bases its decision on SDs
contacts & interests and Indianas lack of interests. (Parties have relationships
with SD)
(d) Courts often use public policy to avoid harsh results
(e) Forum court is not obligated to apply foreign law if it found that law to be
repugnant to local public policy
(f) PP exception is to be construed narrowly; only for fundamental justice or
good morals
(4) Penal law
(a) courts will not apply another state's penal laws- refers not only to criminal
code but to any law designed to punish what is penal is determined by forum
state
(b) The courts of no country execute the penal laws of another. The Antelope
(1825)
(c) Criminal law choice of law is merged with jurisdiction
(d) Civil laws with penal component
(i) Is law designed primarily for the vindication of public justice or the
vindication of a private right?
v) The Foreign Tax Exception
(1) Generally
(a) traditionally, states will not enforce foreign revenue laws
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(b) some states now have reciprocity with others
(c) Revenue rule the courts of one sovereign will not enforce the tax judgments
or claims of another sovereign
(d) Why not enforce revenue rule?
(i) Sovereignty
1. Limit assertion of authority beyond borders
2. Eliminate the possibility of insulting a foreign sovereign by refusing to
honor the foreign tax ruling of one state but not the other
(ii) Separation of powers
1. Conduct of foreign affairs is reserved to the executive branch (and
secondarily the legislative branch)
2. Exec & legislative branches have recently acted by concluding treaty
with Canada
a. Treaty defines methods of enforcing foreign tax claims
b. Treaty does not abrogate the foreign revenue rule
c) Proving and Pleading Foreign Law-Judicial Notice and Proof of Foreign Law
i) Generally
(1) Foreign law- we are talking about law of sister state, as well as law of another
country. Most states distinguish formally between foreign law and sister-states
(which they can apply without difficulty).
(2) In many cases, no Q of foreign law is raised or offered
ii) Geller v. McCown-NV case. Old approach to foreign law as species of fact that can
be proved. Issue here is property in Yukon and decedent lived in NV. W suggests she
has right of 1/3 share of property in Yukon property under its laws. No one disputes
Yukon law could govern, but she did not plead or prove it. Court says cannot apply
Yukon law and so as a fall back will apply own (NV) law.
(1) Court usually has 2 options-can dismiss whole COA (usually when P needs
foreign law for claim) or can apply its own law.
(2) Place of property is under Yukon law and Ps action is dismissed and court
residually applies law of NV.
(3) Old way of foreign law being issue if fact means that it would have to be proved
by expert testimony (bring in foreign lawyer to testify as to content of the law).
Governed by evidence code.
(4) TC decision usually dispositive b/c it decided issue as matter of fact. So it had to
be clearly erroneous in order to reverse
(5) Conflicts rule: Lex rei sitae (place the property is situated) points to Yukon law,
but P did not plead or prove it.
(6) Many conflicts issues never get raised-parties are more comfortable applying their
own law. Q is really when a court sue sponte raises the issue of foreign law. Often
this does not happen and it is usually not a jx matter.
(7) NO JUDICIAL NOTICE OF FORIGN LAW, IT MUST BE PLEAD
iii) Walton v. Arabian American Oil Co-NY fed court and accident is in Saudi Arabia,
where D does business. Court applies NY law. Issue is whether the TC abused
discretion when it refused to take judicial notice of Saudi Arabian law when the P
who relied on that law was unwilling to prove its content?
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(1) Notion of respondeat superior-would employer be responsible for negligent acts

of employer-substantive law
(2) Law of Saudi Arabia is not pled or proved and it seems it does not recognize
respondeat superior.
(3) Conflicts rule: Lex loci delicti points to Saudi law. P does not try to plead Saudi
law b/c he cant understand it and also b/c it hurts his case and he would lose.
(4) Ds conduct-did not plead foreign law b/c it assumed that forum law was the same
as foreign law b/c no one proved otherwise. D dropped ball by not proving that
Saudi law would not recognize respondeat superior.
(5) P argues that Saudi law was uncivilized and court did not buy this b/c it did not
want to declare that the whole countrys laws were uncivilized.
(6) TC did not abuse its discretion by failing to take judicial notice of Saudi law.
Court rejected Ps plea to apply NY law because of the presumption/fiction that
the 2 are identical because (1) it was unrealistic in this case and (2) P did not
prove that Saudi Arabia had not law or that it was uncivilized.
(7) Result here is different than Geller b/c of a shift in mindset and court there had to
come to a decision, whereas here the court does not have to maintain the action. If
P bears burden of proof and cant maintain case-case cannot go forward.
(8) Maxim that court knows the law-has ability to apply the law and this is regime
under we currently operate w/r/t foreign law
iv) Proof of foreign law
(1) Old Practice: Treated as matter of fact
(a) Argued to the jury
(b) Rules of evidence applied
(c) Expert testimony usually required
(d) Very limited appellate review
(2) Modern Practice: Judges can take judicial notice of foreign law
(a) Foreign law treated as law, but must be ascertained by the court with the
assistance of the parties (if neither parties suggest foreign law should apply,
usually the court will not make that suggestion)
(b) Judge is decision-maker
(c) Plenary appellate review in most states (b/c it is a matter of law)
(d) Possibility (in some states) of certification to foreign court
v) California Evidence Code 452 & 453
(1) Section 452
(a) Court may take judicial notice of
(i) decisional, constitutional, and regulatory law of any state of the US and of
the resolutions and private acts of the Congress and of CAs legislature
(ii) official acts of the legislative, executive, and judicial departments of the
United States and of any state of the United States
(iii)
The law of an organization of nations and of foreign nations and
public entities in foreign nations
(2) Section 453
(a) Court shall take judicial notice of any matter specified in 452 if a party
requests it and
(b) Gives each adverse party sufficient notice AND
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(c) Furnishes the ct with sufficient information to enable it to take judicial notice
(d) Parties have responsibility to put court on notice that it is a foreign issue.
(e) CA does not distinguish between foreign states and sister states. Most states
has taking judicial notice of other US states law as mandatory but foreign
non-US jx as option and this makes a difference in appellate review.
vi) Federal Rule of Civil Procedure 44.1
(1) Party intending to raise an issue concerning foreign law shall give notice by
pleadings or other written notice;
(2) Court may consider any relevant material or source (including but not limited to
evidence presented by parties)
(3) Courts determination shall be made as a matter of law-court can inform itself
d) Modern Choice-of-Law Approaches
i) Introduction-History
(1) Walter Wheeler Cook (1873 1943)
(a) Deconstructed the traditional theory
(i) First Restatements goals of certainty, predictability, and uniformity were
illusory b/c of escape devices that courts used
(ii) Actual judicial practice did not reflect laws directives
(iii)
Simplistic system could not provide guidance for complex CoL
problems
(b) Recommended that an approach is better than a fixed system of rules
(c) Suggested that judges make a wise choice between conflicting rules
(2) David F. Cavers (1902-1986)
(a) Content-blind choice of law precluded the making of intelligent choices
(b) Choice of law should be dictated by selecting the law that would produce
justice in the individual case
(c) Later he articulated principles of reference (retreated from above).
(3) Brainerd Currie (1912-1965)
(a) Pioneered governmental interest analysis
(b) Shorthand version:
(i) Normally a forum will apply its own law
(ii) If two sets of laws could possibly apply, the court should inquire into the
policies expressed in those laws
(iii)
If one state has an interest in the application of its law, and the
other state has none, that states law should apply (false conflict)
(iv) If both states are interested, the court should engage in a moderate and
restrained interpretation to try to eliminate the conflict
(v) If, upon reconsideration, the court finds that a conflict between the two
legitimate interests of the states is unavoidable, the court should apply the
law of the forum. (true conflict)
ii) Early approaches, including Center of Gravity
(1) Auten v. Auten-K case. NY court. W is in England (where they lived), H leaves
and gets divorce in Mexico and goes to NY. She follows him and gets settlement
K for kids. He pays a few times, then quits. She then sues in England to try to get
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separation and alimony. W claims she sued in order to enforce, rather than
repudiate K. She then goes to NY to try to get back payment.
(a) Issue is did the initiation of the English action constitute a rescission of the
NY agreement? Issue b/c as part of K she promised she would not sue him.
(b) Under lex loci contractus, law of NY should apply to K.
(i) Under NY she breached.
(ii) Under English she did not
(c) Court uses center of gravity approach. Finds that, in light of its multiple
contacts, England is the center of gravity of the dispute and is the state with
the greater concern in applying its law. English law should govern. Court
wants to further theory of this approach to CoL and wants her to win. ( based
on whether we are talking about his performance or her performance)
(d) NY is the Hs domicile-we now this b/c court has jx over him. Place where H
made payments is NY, court maybe looks at this as not as important as place
where W receives payments (England).
(e) Mention of expectations of the parties-both parties assumed that English law
would govern the Ws institution of a separation action.
(2) Haag v. Barnes-K case. NY court. Secretary has affair with boss and has child. In
return for no paternity suits, he agrees to pay support for child. Liason in NY, she
got payments in NY. D is in Il and K is in Il
(a) K had choice of law stipulation. Choice of law clause said Il law governed,
but court recognized the superior bargaining of the D. Reason court went
through conflicts analysis b/c party autonomy was not as firmly entrenched as
it is now. Also, court recognized this as a case in which it could further their
goal of changing the law.
(b) Issue is should the IL k be enforced as written, or should NY law apply with
possibility of modifying the k and increasing Ds obligations? Is NY public
policy re child support satisfied or offended by the enforcement of the IL
contract?
(c) Results from application of NY is not necessarily a given and court surmises
no increase in payments.
(d) Court here emphasizes payments made in Il. (totally different from Auten)
(e) Court finds that the center of gravity of the dispute was in Illinois and the
agreement should be enforced as written. That being so, the agreement acts as
a bar to Ps further claims for support. The court implicitly concludes that this
is a false conflict when it says that the agreement had more than satisfied
the standards of NY law
(f) Problem with this approach is that how do we weigh certain contacts and how
do we decide which contacts to weigh?
iii) Policy-Based Analyses
(1) Generally
(a) All of the approaches have in common that they give consideration to the
policies underlying the laws.
(b) Courts still treat cross border cases differently from domestic cases.
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(c) Ask if certain policy should apply to this case and what was the purpose
behind the law in general. In identifying govt interest, you can ascertain
whether that law should apply to that case.
(d) Process results in 1 of 3 (or 4) scenarios
(i) False conflicts (easy)
1. Also includes cases where laws are identical or results are same but
law differs
(ii) Apparent true conflict-if alter interpretation (multistate case) might be able
to read out conflict
(iii)
True conflict (hard)-both states have an interest-how do we decide
which law should apply? Curie said in tie-breaker forum law applies
(iv) Unprovided for case (kind of hard)-neither jx is interested
(e) All modern approaches have some sort of interest analysis in them
(2) False Conflicts (Common-Domicile Torts)
(a) Babcock v. Jackson-Mix of center of gravity with interest analysis. This is a
tort case with D and P from NY. The traveled into Canada and got into
accident. P sued and under Canadian law COA not permitted, but under US it
is
(i) Court looked at the interests that NY had in allowing people to recover
and Canadas reasons for excluding and decided Canada was not interested
b/c it was concerned with false insurance claims.
(ii) Common domiciliary cases lead to easier outcomes b/c not competing
between states to protect its domiciliaries. Cases are harder when there are
split domiciliaries.
(iii)
NY policy: NYs failure to enact a guest-statute or limit tort
recovery reflects a loss-allocation judgment that victims of traffic
accidents should be protected (even if they are guests) by holding drivers
accountable for the accidents they cause.
(iv) NY interest: Here both victim and driver are NY domiciliaries. Hence
NY interest in applying its loss-allocation rule to protect the passenger at
the expense of the driver.
(v) Ontario policy: Protect insurer from collusion between driver and
passenger. Trying to protect drivers who were trying to do a good thing by
driving people.
(vi) Ontario interest: Insurer here is not an Ontario insurer. Hence, Ontario
not interested. Has interest in making sure insurance is affordable for its
residents.
(b) Conduct regulation v. Loss allocation
(i) Policy behind the rule is important
1. Conduct regulation rules operate territorially
a. We assume NY wants to protect NYers, but this might not always
be accurate.
2. Loss distribution rules might not operate territorially
a. Rules tend to accompany domiciliaries
b. Territorial contacts can still be important, but less so
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(c) Rong Yao Zhou v. Jennifer Mall Restaurant-Pure interest analysis case.
Introduces concept of dram shop act. Ps-victims and D is restraurant owner.
Place of conduct of serving alcohol was in DC. Accident in MD. Issue: is
restaurant owner liable for injury caused by his drunk customers??
(i) In DC-Yes. Dram Shop Act provides that a tavern-owner who serves
liquor to an apparently intoxicated customer.
(ii) In MD-No, the tavern-owner is not civilly liable, although he may be
criminally liable
(iii)
Loss allocation here, but also conduct regulating b/c tavern owners
must govern practice if they know they are on the hook for paying
liability.
(iv) DC policy: To deter tavern owners from serving excess liquor, and/or to
compensate the victims of accidents caused by the drunks.
(v) DC interest: DC interested on both grounds. Tavern is in DC and conduct
occurred there; victims are DC domiciliaries.
(vi) MD policy: Protect tavern owners from the financial burden of civil
liability.
(vii)
MD interested: No? MD tavern or owner involved here. Hence
MD not interested
iv) The Second Restatement (False Conflicts)
(1) 2nd Restatement
(a) Section 6
(i) Section 6(1) A court will follow a states statute on choice of law insofar
as it is Constitutional
(ii) Very few states have choice-of-law statutes (only Louisiana and Oregon)
1. Means most state legislatures have legislated about choice of law. All
judge-made.
(iii)
Section 6(2) When there is no such directive, factors relevant to the
choice of the applicable rule include:
1. The needs of the interstate and international systems
2. The relevant policies of the forum
3. The relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue
4. The protection of justified expectations
5. The basic policies underlying the particular field of law
6. Certainty, predictability, and uniformity of result
7. Ease in the determination and application of the law to be applied
a. The section 6(2) factors are not listed in any hierarchy
b. The factors include interest analysis principles as well as other
concerns
c. Section 6(2) works in conjunction with subject-specific sections to
identify the state with the most significant relationship
(b) Biggest problem with 2nd restatement is lack of direction
(c) Retains characterization problem-i.e., must figure out if it is a tort or K case.
Also, the place of injury in torts, place of K is starting point, etc.
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(d) 2nd restatement was in response to criticism of 1st restatement. Has a plurality
of acceptance by the US-b/c 2nd restatement allows judge to get to whatever
result he wants (too cynical?). Does permit judges to engage in ad hoc
analysis, but is it worse than any other approach?
(2) Bryant v. Silverman-Court applies 2nd restatement but determines that CO is not
interested in outcome, but AZ is. Section 6 factors can either bolster or undermine
the presumption. CO place of accident from small plane from AZ. 1 P is from
NM, 1 from TX and 1 from AZ. Tickets purchased in CO. What law governs
compensatory and punitive damages?
(a) Compensatory damages-unlimited in AZ and TX and limited in CO.
(b) Punitive-yes in all states, but CO
(c) Forum is AZ, presumption that forum law will apply, but can be overcome.
Here, Ps would rather have AZ law than CO.
(d) Court concludes that, in light of its contacts and policies, AZ has the most
significant relationship. AZ law applies for both compensatory and punitive
damages and with regard to all three plaintiffs.
(e) Courts analysis-court starts at most specific section
(i) Section 178 (Damages for Wrongful Death Cases)
1. Applicable law is that selected by application of Section 175
(ii) Section 175 (Wrongful Death)
1. Local law of place of injury determines the rights and liabilities of the
parties unless, with respect to the particular issue, some other state has
a more significant relationship under the principles stated in Section 6
(iii)
Section 145(2) (General Tort Choice-of-Law Principles)
1. Place of Injury -CO
2. Place of conduct causing injury-? Do not know for sure where (CO or
AZ)
3. Domicile of plaintiff and defendant-1P, D in AZ, other Ps in NM and
TX
4. Place of the relationship between the parties-Court places relationship
in CO, where ticket was purchased.
(iv) Relevant policies of the forum
1. CO decided not to make punitive damages available, possibly b/c it is
protecting CO defendants from large verdicts.
(v) Ps are not residents of CO-so court said CO is indifferent to their
compensation, but CO has strong policy of protecting Ds-court reads in
Ps protection, without considering flip sides of this. They assume CO is
not interested b/c they look at it from Ps perspective. However, this result
might not be something CO likes and its interests not adequately taken
into account.
(vi) In torts cases it is not unusual to dismiss with certainty, predictability, or
uniformity of result
v) The Better Law; Recap on Common-Domicile Cases
(1) 3 different modern approaches
(a) Interest analysis (Curie)
(b) Interest analysis in 2nd restatement
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(c) Leflars better law

(i) All approaches lead to same direction in common domiciliary cases
(2) Milkovich v. Saari-Minnesota case. Guest statute that could shield D from
liability. D and P are Ontario residents and Ontario has guest statute. Accident in
Minn (no guest statute). Law of domicile would not allow recovery. Issue is D
amenable to suit in light of the Ontario guest statute which immunizes her from
liability in cases where she is not guilty of gross negligence?
(a) P sued under Minn law and court uses better law analysis and concludes Minn
law is better. Uses rationale that it has interest of administering justice-this is a
transparent rationale and is not convincing.
(b) Court applies MN law based on (a) the forums interest and (b) its preference
for what is regarded as the better rule of law (which happens to be MNs
law). The forums interests are: (i) ensuring payment of local medical bills
incurred as a result of the accident and (ii) its interest as a justiceadministering state in seeing that its standards of justice are followed in
resolving disputes with substantial MN connections.
(c) Does court have the autonomy to choose the better law that is not the law of
the state? Is this taking a legislative action it is not allowed to have? If court
had said that Ontario law should apply, then it would be legislating-so this is a
problem. Hard for court to say that even though legislature has spoken,
Ontario law is better so it decided to apply it. This is a problem with the better
law approach. Better law approach seems to do away with any public policy
rationale.
(d) There are more contacts in Ontario, but court argued that medical bills and
care were in Minn and court said incentive for Minn to care for victims meant
Minn law should apply. Not an insignificant interest, but should it trump all of
the other Ontario interests?
(e) Dissent thinks the P forum shopped and does not like the result. If they stayed
in Ontario court, he thinks it would have applied Ontario law. But, we would
need to know Ontarios choice of law rules before deciding this.
(3) Leflars Choice-Influencing Considerations:
(a) Predictability of results
(b) Maintenance of interstate and international order
(c) Simplification of the judicial task
(d) Advancement of the forums governmental interests
(e) Application of the better rule of law-this is the real focus b/c the other 4
are familiar. Leflar argued this is only applicable to some cases, but
courts focus on this always.
(i) In nearly every case that applies the better law approach, court has
applied forum law. Another way of giving advantage to forum?
(4) Common-Domicile Cases
(a) In nearly every case involving plaintiffs and defendants with a common
domicile, the court applied the law of the common domicile.
(b) This was the result regardless of the choice-of-law methodology employed by
the court.
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(c) In those cases in which the court did not apply the law of the common
domicile, the court usually applied the (1) pro-plaintiff law (2) of the forum
vi) True Conflicts Interest Analysis (Contracts)
(1) Lilienthal v. Kaufman- Involves a spendthrift statute. Where a state appoints a
guardian for someone who keeps getting into debt. Guardian can void Ks that
spendthrift enters into, so as not to get spendthrifts family in financial trouble
(a) D is from Oregon, which has spendthrift law. He went to CA, entered into a
loan K and then D defaulted. P is trying to get $ back and D is trying to
convince Oregon court that Oregon law should apply.
(b) These cases happen when more than 1 state has interest in having their law
apply.
(c) Oregon court does not think that Oregon spendthrift law is a good law, but
they are hampered by the previous case-if they let CA P recover they are
somehow giving a benefit to the CA P that the Oregon P did not get in prior
case. Court comes to rational conclusion that CA law could apply, but they are
constrained by Oregon policy, so rule that Oregon law applies
(d) Oregons policy is that it protects spendthrifts family and ultimately state
welfare funds. INTERESTED. Other OR interests are subordinated by the
spendthrift rule: enforcing contracts; protecting people from fraud; promoting
ORs reputation as a state that holds parties to their contracts and thus
encouraging foreigners to do business with Oregonians
(e) CA policies are that their law protects California creditor and contracts validly
made in that state. INTERESTED
(f) Court applies OR law and declares the contract unenforceable. This is a true
conflict in which both states are interested. In such a case, the public policy
of Oregon should prevail, and the law of OR should be applied; thus, we
should apply that choice-of-law rule that will advance the policies or interests
of Oregon
(g) Courts are instruments of state policy. The Oregon legislature has adopted a
policy to avoid possible hardship to an OR spendthrifts family and to avoid
possible expenditure of OR public funds that might occur if the spendthrift is
required to pay his obligations. In litigation OR courts are the appropriate
instrument to enforce this policy.
(h) This case is an illustration of the constraints of interest analysis when you
have a true conflict. Once Court identifies Oregon as interested, they say who
are we to second-guess the Oregon legislature-not our job to change the law.
(i) Criticism of interest analysis-there is forum favoritism.
vii) True Conflicts/Restrained Interpretation (Apparent Conflicts) (Contracts)
(1) Traynors approach
(a) Instead of automatically applying law of forum, can you approach matter in
different way-moderate and restrained interpretation. Can you reassess the
states interests so that 1 states interests falls away and then apply law of only
interested state.
(2) People v. One 1953 Ford Victoria-D purchased car in TX and had chattel
mortgage. He went across state lines into CA, where car was used for illegal
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purposes. Issue is what is going to happen to the interest in the car? Car is
partially owned by a bank, and they want their part of the car.
(a) CAs law says a car used to transport narcotics shall be forfeited to the state.
The forfeiture includes the interests of third parties, such as mortgagees,
unless they show that they conducted a reasonable investigation of the
mortgagors character. No such showing here; hence, mortgagees interest is
subject to forfeiture. TXhas no such statute and thus mortgagees interest is
not subject to forfeiture.
(b) Ct uses interest analysis, but with enlightened interpretation of forum law
(c) CAs policies: To deter the use of cars for the transportation of narcotics
INTERESTED. TXs policies: To protect the Texas mortgagee and mortgages
validly established in that state -- INTERESTED
(d) Currie would say apply forum law-CA, but Traynor did not do this. Reinterpretation: In the absence of contrary language, it would be unreasonable
and unfair (contrary to the policy of protecting justified expectations) to
interpret the CA statute as being applicable to out-of-state transactions. In
fact, the statutes language, especially its 1955 amendments, suggest that the
statute was not intended to apply to non-CA transactions.
(e) Court says CA statute inapplicable and thus TX law governs. Mortgagees
interest is expected from forfeiture.
(3) Bernkrant v. Fowler-P bought apartment and owed $ to person who bought it.
Then P wanted $ sooner and had them takeout a different loan and promised to
put in his will that he would forgive whatever amount of the loan remained at time
of his death. (Consideration for the change). No Q that this was done. NV Ps;
decedent died in CA.
(a) CA statute of frauds renders unenforceable an oral promise to make a will.
NV statute of frauds [arguably] inapplicable to this case. Oral promise
enforceable. Loan secured by interest in property. Issue is the oral promise to
make a will enforceable?
(b) Court uses interest analysis, but with enlightened interpretation of forum
law
(c) CAs policies: to protect the estates of CA decedents from potentially
fraudulent claims INTERESTED. NVs policies: to protect plaintiffs and
contracts validly made in NV -- INTERESTED
(d) Re-interpretation- In the absence of contrary language, it would be
unreasonable and unfair to interpret the CA statute as being applicable to nonCA transactions. The policy of protecting justified expectations, which is a
common policy of both states, militates strongly against applying the CA
statute to this NV promise. Ps could not have anticipated the application of
CA law because, even if at the time of the promise the promisor was
domiciled in CA (which is doubtful), there was no assurance that he would
retain his CA domicile until death. He could have moved to any other state.
Ps could not comply with the laws of all 49 states
(e) Result is that CA statute held inapplicable. NV law applies. Promise is
enforceable.
viii) True Conflicts (Split Domicile Intrastate Torts)
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(1) Foster v. Leggett-Kentucky (forum) is location of P. D is employed there and also

has residence there. Ds domicile is in Ohio, accident occurs there and car is
registered there. Intrastate b/c tort occurs entirely in 1 state, but parties are from
different states. Issue: is D amenable to suit in light of the Ohio guest statute that
immunizes host-drivers from liability?
(a) Kentucky has no guest statute. P is not denied recovery merely because of her
status as a gratuitous guest. Ohio has a guest statute. Host driver is immune
from liability vis--vis his gratuitous guests
(b) Kentuckys approach is lex fori- (forum favoritism approach)-law of forum
applies unless there is a good reason why it should not apply. Aligned with
interest analysis, but different in its absolute clarity.
(c) Court applies KY law. Reasons given: the courts primary responsibility is
to follow its own substantive law. The basic law is the law of the forum,
which should not be displaced without valid reasons. In the case at bar,
contacts with KY were numerous and significant. If there are significant
contacts -- not necessarily the most significant contacts -with KY, the KY law
should be applied.
(d) Forum favoritism is appealing to some judges-it is easier.
(a) Court could have determined that this was not really a true conflict with
Ohios interest in protecting him limited b/c he spent most time in Kentucky
and thus a false conflict.
(e) Only split domicile tort case that applied law of P, when Ds domicile and
accident occurred in other state. Any other court would have applied Ohio law
(2) Cipolla v. Shaposka-D and P were classmates and D gave P a ride. There was a
car accident in Delaware. Car was owned by Ps father and he was DE resident;
passenger was PA resident. DE guest statute, which would bar recovery, whereas
PA does not have a guest statute. Issue is which states law governs Ds immunity
to suit?
(a) Courts approach is mixed. Interest analysis coupled with reliance on Cavers
principles
(b) PAs policies- Protect victims of a traffic accident even if they are gratuitous
guests INTERESTED. DEs policies- Protect host-drivers and their insurers
-- INTERESTED
(c) Court says The fact that the accident occurred in DE is not a relevant contact
because the Delaware statute does not set out a rule of the road.
Nevertheless, DEs contacts are qualitatively greater than PAs and [DE] has
the greater interest in having its law applied. Citing Cavers, By entering
[DE], the [P] has exposed himself to the risk of the territory and should not
subject persons living there to a financial hazard that their law had not
created. Inhabitants of a state should not be put in jeopardy of liability
exceeding that created by their states law just because a visitor from a state
offering higher protection decides to visit there. DE law applies and D
immune from suit.
(d) Court says this is a loss allocating rule, not a regulating rule. Idea here is if
you are a D and your conduct and injury occur within single state, you can
expect your conduct to be governed by the law of that state and P, who
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chooses to go into that state, is voluntarily subjecting herself to that state.

(Enhances predictability).
(e) Court did not address possible purpose of guest statute as designed to prevent
fraud against insurance companies. (Interesting fact). If this is the purpose,
then maybe guest statute is not altogether outdated.
(f) Dissent says that should have used a better law analysis-guest statute is the
inferior law. He looks at which law is regressing across the country and he
thinks guest statutes are on the decline.
(3) Eger v. Du Pont-P employee in NJ, NJ employer and NJ subcontractor. Employer
sent to SC. Du Pont in SC. Exposure in SC (injury). Different workers comp laws.
NJ-DuPont only secondarily liable for WC and not immune from a tort suit, SCDu Pont directly liable for WC and immune from tort suit. Issue is which states
law determines whether DuPont is amenable to a tort suit?
(a) NJ courts approach is interest analysis (including weighing of interests)
(b) NJ wants to protect workers by allowing recovery of additional damages
beyond WC; protect the subcontractor by allowing reimbursement for WC
benefits paid to worker INTERESTED
(c) SC wants to protect the welfare of persons working within borders; affix
responsibility for that protection; regulate the safety of the workplace; allocate
financial costs resulting from employment accidents. Attain these goals by
requiring that a general contractor assume burden of furnishing WC for
employees of subcontractors because GC is usually more financially
responsible INTERESTED
(d) Weighing of NJ interests: NJs interest in seeing that its injured residents
receive compensation has not been neglected; it has been addressed through
the WC system. [A]n injured resident who is covered by WC is guaranteed
payment of medical expenses and disability benefits for work-related
accidents . . . Therefore, WC, which was intended to prevent injured workers
from becoming public charges by shifting to industry the expense of
compensating work-related injuries, reasonably satisfies the states interest in
providing a source of compensation for injured workers.
(e) Weighing of SC interests: SC has a great interest in having other states
recognize the tort immunity conferred on general contractors, since this
immunity is part of the quid pro quo that is fundamental to SCs WC system.
[S]ubjecting a SC general contractor to tort liability in addition to the
expense of providing WC coverage . . .would frustrate that states interest in
regulating the manner in which victims of industrial accidents are
compensated and would undermine the foundation of SCs WC statute by
upsetting the fundamental equation of linking the obligation to provide WC
coverage and immunity from tort liability
(f) Result-NJs interest is not strong enough to outweigh SCs interest in
immunizing general contractors. SC law applies; DuPont is immune from
tort suit
(4) Bottom line for split-domicile intrastate torts
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(a) When conduct and injury occur in the tortfeasors home state and that states
law favors the tortfeasor, that law governs (even if the law of the victims
home state favors the victim). Foster is the only exception.
(b) When the conduct and injury occur in the victims home state and that states
law favors the victim, that law applies (even if the law of the tortfeasors
home state favors the tortfeasor).
ix) True Conflicts (Split Domicile Cross-Border Torts)
(1) Bernhard v. Harrahs Club: Club is in NV and they sell alcohol, but also
advertise in CA. A couple from CA are injured in car accident in CA and sued
club in CA ct, claiming club was negligent in selling alcohol. Issue is which law
determines whether the D is liable for the injury caused by his intoxicated patron?
(a) CA at this time would hold tavern owners liable for injuries resulting from the
negligent serving of alcohol. CAs interests: Protect victims of traffic accidents
caused by drunk drivers by deterring tavern-owners from continuing to serve
apparently intoxicated patrons INTERESTED. Conduct regulating and loss
allocation as well.
(b) NVs interest-Protect tavern-owners from ruinous civil liability every time
they pour a drink -- INTERESTED
(c) Approach-Interest Analysis + Comparative Impairment. We have a true
conflict here.
(d) CA impairments: CA cannot reasonable effectuate its policy if it does not
extend its regulation to include out-of-state tavern keepers such as D who
regularly and purposefully sell intoxicating beverages to CA residents in
places and under conditions in which it is reasonably certain these residents
will return to CA and act therein while still in an intoxicated state. CAs
interests would be significantly impaired if its policy were not applied to D.
(e) NV impairments: Since the act of selling alcoholic beverages to obviously
intoxicated persons is already proscribed in NV [not true], the application of
CAs civil liability rule would not impose an entirely new duty requiring the
ability to distinguish between CA residents and other patrons. Result is only
an increased economic exposure, which for businesses that actively solicit
extensive CA patronage, is a foreseeable (and insurable) business expense.
Moreover, NVs interest is not significantly impaired because liability is only
imposed on those who actively solicit CA business.
(f) Result-CA law applies and D is liable.
(2) Baxters Hypothetical
(a) State X is forum and where driving and accident occurs. State Y has D and P.
State Xs law says that speeding is negligence per se and state Y says no per se
rule and negligence must be proved. Issue is which law?
(b) Baxter says that Xs goal is road safety for people from X. Y says interest is to
control loss-distribution rights and duties between X and Y.
(c) Impairment analysis: Xs regulatory interest stands alone in opposition to Ys
loss distribution interest . . .[T]he X regulatory interest will not be impaired
significantly if it is subordinated in the comparatively rare instances involving
two nonresidents who are residents of a state or states that reject the per se
subrule. Conduct on X highways will not be affected by knowledge of Y
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residents that the X per se rule will not be applied to them if the person they
injure happens to be a co-citizen.
(d) Resolution: Xs per se rule ought not to be applied, because Xs regulatory
interest stands alone in opposition to Ys loss distribution interest.
(3) Comparative impairment generally
(a) Victim-protecting resolution so long as it is foreseeable that V would be
injured by particular conduct.
(b) Baxter thought the proper way to resolve this was to imagine the two states
legislatures could sit down and work out a solutionwho would be willing to
give up what?
(c) Comparative impairment is not supposed to consider which law is better or
worse
(d) Still CAs approach to CoL in torts. Interest analysis with intermediate of
restrained interpretation and ending with comparative impairment analysis.
(e) Internal objective the goal underlying each states resolution of conflict
private interests when all of the parties are within the state
(f) External objective furthering as far as possible the goal set forth in the
internal objective in all situations involving those for whom the state has the
responsibility
for legal ordering
(g) When external objectives collide, you have a true conflict
(h) Imagine that the two state legislatures were to sit down to come to some form
of agreement what would they decide to do?
(i) Which states internal objective (interest) would be LEAST impaired if it were
subordinated to the other states internal objective (interest)
(j) Bottom line for split-domicile cross-border torts-When conduct originating in
one state injures in another state a person domiciled in the latter state, the law
of the latter state applies if it is more favorable to the injured person and IF the
occurrence of the injury in that state was objectively foreseeable.
(k) Issue is often when is it foreseeable to the D that conduct in state X will be
judged in any way by state Y. It may be foreseeable according to state Y after
the fact, but not before.
x) The Unprovided-For Case
(1) if neither state is interested in regulating particular conduct or providing defense
for conduct
(2) Erwin v. Thomas: D was driving in Wash. and got into accident that injured Ps H
and she sues in OR court. D lives in Or, P lives in Wash. This court found that OR
law should apply. In OR, action for loss of consortium is available, it is not in
Wash. Issue is which states law determines availability of action for loss of
consortium? Approach is interest analysis
(a) ORs policies: Protect wives by declaring their losses to be real and
compensable NOT INTERESTED since no Oregon wife is involved.
(b) Washs interests: Protect Ds by shielding them from this additional liability
(perhaps furthering policy/judgment that wifes losses are not considered real
or compensable) NOT INTERESTED since no Washington D is involved.
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(c) Resolution-[N]either state has a vital interest in the outcome of this litigation
and there can be no conceivable material conflict of policies or interests if an
Oregon court does what comes naturally and applies Oregon law. Result is
forum law governs and P can recover
(3) Casey v. Manson Construction Co: Issue is loss of consortium. D and accident
occurred in Wash and P is in OR (which allows loss of consortium). Issue- Which
states law determines availability of action for loss of consortium?
(a) Used 2nd restatement approach.
(b) Resolution-WA defendants should not be required to accommodate
themselves to the law of the state of residence of any traveler whom they
might injure in WA; WAs interest in the matter, which was protective of WA
defendants, was paramount to ORs interest in having its resident recover for
her loss; WAs relationship was the more significant one and WA law applied.
(4) Neumier rules
(a) If you have common domicile false conflicts, then go with law of domicile for
loss allocation rules (Babcock).
(b) If you have split domicile true conflicts, then if go into Ds jx, if there is a proD law that should apply. If accident in pro-P jx and foreseeability is here, then
apply law of pro-P. Lex loci delicti acts as tie breaker
(c) All other cases (difficult)-apply lex loci delecti b/c that comports w/
expectations.
(5) Neumeier v. Kuehner: Accident in Ontario and P from there. D is from NY. NY
doesnt have a guest statute. P is not denied recovery merely because of her status
as a gratuitous guest. Ontario has a guest statute. Host driver is immune from
liability vis--vis his gratuitous guests except in cases of gross negligence
(a) False conflict here, but approach is Neumeier Rules
(b) Resolution: Court enunciates the Neumeier Rules. This calls for application
of Rule 3 application of the lex loci delicti unless it is shown that not
applying that law will advance the relevant substantive law purposes without
impairing the smooth working of the multistate system or producing great
uncertainty for litigants. Escape is inapplicable here.
xi) Dpeage & Conduct-Regulation Conflicts
(1) Introduction
(a) Depecage is available in US Ct to apply to all kinds of conflicts of law
approach. One area is substance vs. procedure; another area is cases of mixed
K and tort case. In K case, one law may govern the performance of K and
another law governs K formation.
(2) Ardoyno v. Kyzar: LA is the forum, performance of the K and where the
atty/client relationship is. MS is where slanderer is, where D is. Issue is which law
governs (a) availability of action for interference with contract and (b) availability
of punitive damages for slander? Combined modern approach: interest analysis,
Restatement 2d, comparative impairment analysis.
(a) Interference with K-In LA, action for interference with contracts not
available -- protects MS D. In MS, action for interference with contract is
available -- protects LA P. LA policies: To ensure mobility of labor force by
enhancing the chances of employees to receive better employment offers from
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competing (interfering) employers. By not allowing an employer to sue the

interfering employer, LA law preserves and enhances opportunities for all
employees. This policy is relevant in all LA contracts (even if the individual
beneficiary of this rule is a non-Louisianan)- INTERESTED because the
contract was to be performed in LA. MS policies: Protect stability of
employment contracts by penalizing competing employers who interfere with
such contracts. This policy is confined to MS contracts (regardless of who is
the individual who benefits from the rule)- NOT INTERESTED because the
contract was not made, nor was it to be performed, in MS> Result- False
conflict. LA law applies. No action for interference with k.
(b) Punitive damages for slander-LA- Not available at the time of the
statements (although made available by subsequent statute). MS-available. LA
policies- Protect integrity of judicial system by avoiding speculative
damages -- INTERESTED since case is before a LA court. MS policiesDeter slanderous conduct within its borders. -- INTERESTED since conduct
occurred in MS by a MS D. Result- Court resorts to Restatement Second and
comparative impairment and concludes that MS has the more significant
relationship and that MS interests would be more impaired if its law were not
applied. MS law applies and damages are available.
(3) Hypotheticals on depecage
(a) Issues-Which law governs: (a) Ds negligence; and (b) the beneficiaries of the
wrongful death action?
(b) Resolution Issue (a): State A law applies. State A has legitimate reasons to
insist on adherence to its snow-tire rule and on defining the consequences of
noncompliance. State Bs no-snow-tire rule is simply irrelevant with regard to
driving outside its borders.
(c) Propriety of dpeage: Dpeage is not inappropriate here because the snowtire rule of State A is not closely related, and perhaps not related at all, to the
wrongful death rule of the same state. The application of the former rule and
the non-application of the latter rule does not distort or defeat the policies of
state A, nor does it disturb whatever equilibrium these two rules might
establish between deterrence and compensation
(4) Padula v. Lilarn
(a) NY is the forum and where Ps and D are; MA is the site of the building and
construction and where work took place. Even though this is a common
domicile case, Neumerier rule doesnt apply b/c it is a loss allocation rule
rather than conduct regulation rule. This distinction could be difficult to
apply. It might not easy to find out the purpose of law in a particular jx.
(b) Concurring opinion: statutory interpretation problem. The bottom line is as the
comment suggests, there is dispute on feasibility to distinguish conduct
regulating and loss allocating rules. Conduct regulating rule, if the conduct
and injury occurred in the same state, apply the law of that state.
(c) If conduct occurred in State A, the injury occurred in state B. State B may
have interest in applying its law to protect the citizen in the state. The Ct
almost always applies the law of state B.
(5) Conduct regulating rules
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(a) Deciding if it is loss allocating or activity-deterring is difficult. 1 of the

striking things about conduct regulation is that they are territorially
dominated.
(b) If conduct-regulating rule and if conduct and injury occur in same state, then
apply law of that state.
(c) If injury and conduct occur in 2 different states, this is more difficult. If
standards are the same (same provisions), then does not matter-choice of law
analysis will be cursory-law of place of conduct will probably apply.
(d) If conduct state has higher level duty of care on the D then place of injury
state-conduct state applies b/c has bigger interest. Other state is not interested
b/c conduct is in other state and not as concerned with protecting Ps. So false
conflict and concerns about predictability are satisfied b/c if D is engaging in
conduct in conduct state he is availing himself of its law.
(e) When state of injury has higher injury imposed on D then state of conduct-this
is a true conflict. State of injury wants to protect Ps and give them greater
recovery and conduct state wants to protect Ds. Conduct state will probably
apply.
(f) If it is foreseeable that D engages in conduct and injury is in other state, then
D is subject to higher standards of injury state
xii) Complex Litigation
(1) In re Air Crash Disaster at Sioux City, IA
(a) Court dismisses IA as applicable law. Crash in IA b/c of crash landing, but
fortuitous. It is lex loci delecti.
(b) Multidistrict litigation-procedural device in fed courts that consolidate cases
that have common claims. Here cases were filed all over the country and fed
courts consolidate them b/c they were really the same trial.
(c) Raises issues b/c fed courts sitting in diversity apply state substantive rules in
which they sit, includes choice of law rules. In cases of transfer, fed court
applies choice of law rules from which case came. This is to prevent forumshopping by means of transfer and not to penalize Ps. Desirable to change
forum even though P got jx over D and we do not want to hurt P. Means D
cannot forum shop, but does not prevent P from forum shopping to begin with.
(d) IL is the transfer forum and interested state. Uniteds principal place of
business, destination of flight. Plane was in CA and maintenance was there
and manufactured there. OH is where engines are from. CO-crew training.
NY-GEs place of business and Missouri-McDonnells place of business.
(e) Wrongful death, personal injury claims vary by state here. Court minimizes
difficulties in the case but assuming that when talking about punitive
damages, they are conduct-regulating and therefore have to do with D,
therefore nothing to do with compensation to P. This is why Ps domicile does
not matter AT ALL-no interest.
(f) Not feasible to expect United to be subject to laws of all the states and might
think that laws of IL and CA are sufficient to protect those elsewhere.
(g) Court then has places of business of D and must apply choice of law rules of
various states. It lumps cases together in different approaches.
(i) Cases from GA, CO, IA, NY, IL-2nd restatement,
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(ii) CA-interest analysis and comparative impairment and

(iii)
PA and DC-interest analysis and restatement second.
(h) We end up only applying IL to United, CA to MD and OH law to GE.
(i) Problems with this(i) NY has own special rules-does not really follow 2nd restatement. GAapplies old lex loci delecti rule. Court should have said that other courts
decide that this is not feasible in aircraft cases and can predict GA would
abandon this. District Ct could have certified to state supreme court of GA
the issue and then applied it after hearing from GA SC. GA could have
tried to use escape devices to avoid applying IA law-characterize issue as
breach of K between GA P and United. Could also have applied renvoi
and look at IA law and then shift it back to GA or IL. Might use last act
rule to say injury to GA P occurred in P b/c that is where wrongful death
hurt loved ones.
xiii) Party Autonomy
(1) Generally
(a) This is a cornerstone of the law of contracts. Ability to choose law that
governs their Ks.
(b) Under 1st restatement, this choice sometimes not followed. The issue is really
to what extent can parties contract to direct a court or judge can do. Parties
have a lot of freedom that governs K, as long as it is a reasonable choice.
There are some limitations on party autonomy.
(2) Restatement 2nd 187
(a) The law of the state chosen by the parties to govern their contractual rights
and duties will be applied if the particular issue is one which the parties could
have resolved by an explicit provision in their agreement directed to that
issue.
(b) The law of the state chosen by the parties to govern their contractual rights
and duties will be applied even if the particular issue is one which the parties
could not have resolved by an explicit provision in their agreement directed to
that issue, unless either
(i) 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
(ii) Application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater interest than
the chosen state in the determination of the particular issue and which,
under the rule of 188 (law that would be applicable absent a choice of
law provision), would be the state of the applicable law in the absence of
an effective choice of law by the parties
(c) In the absence of a contrary indication of intention, the reference is to the
local law of the state of the chosen law
(d) Almost all courts follow this, even if they do not follow the restatement in
other areas. Pro-party autonomy.
(3) Nedlloyd Lines B.V. v. Superior Court
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(a) Dispute over whether CA or Hong Kong would apply. Choice of law clauseThis agreement shall be governed by and construed in accordance with Hong
Kong law and each party hereby irrevocably submits to the non-exclusive
jurisdiction and service of process of the Hong Kong courts. This means that
Hong Kong law governs regardless of forum. Parties did not choose exclusive
forum (this is why it is in CA).
(b) In CA b/c Ps want CA law b/c it will help them and Hong Kong law doesnt.
(No fiduciary duty claim under Hong Kong law).
(c) Issue: is the Choice-of-Law clause enforceable, and does it encompass all
causes of action?
(d) Court uses Restatement (Second) section 187 test:
(i) Is this issue within the parties contractual power? NO.
(ii) Does HK have a substantial relationship? YES (Ps & another partys
incorporation). Even if not substantial, it would be a reasonable basis for
choosing HK law.
(iii)
Does CA have a more significant relationship than HK? Ct.
assumes YES
(iv) Does CA have a Materially greater interest than HK? Not addressed
(v) Is the application of the chosen law (HK) contrary to a fundamental
policy of CA? NO
(vi) Does the choice-of-law clause encompass the not purely contractual issues
such as breach of fiduciary duty? YES
(e) Result is that the chosen law applies to all COAs. But, parties cannot contract
too broadly if another state would be very interested.
3) Constitutional Limitations on Choice of Law

a) Due Process and Full Faith & Credit
i) The US Constitution leaves states largely free to determine choice of law approaches
within a broad constitutional perimeter
ii) Two Sources of US Constitutional Limits on Choice of Law
(1) The Due Process Clause Fourteenth Amendment, Section 1 Due Process Clause
(a) [N]or shall any State deprive any person of life, liberty, or property, without
due process of law....
(2) The Full Faith and Credit Clause Article IV, Section 1 of Full Faith and Credit
(a) Full Faith and Credit shall be given in each State to the Public Acts, Records,
and judicial Proceedings of every other state. And the Congress may by
general Laws prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof.
(b) 28 U.S.C. 1738
(i) Such Acts, records and judicial proceedings or copies thereof, so
authenticated, shall have the same full faith and credit in every court
within the United States and its Territories and Possessions as they have
by law or usage in the courts of such State, Territory, or Possession from
which they are taken.
iii) Home Insurance Co. v. Dick
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(1) TX originally the forum here-now in US SC. Dick was a citizen of TX, but lived
in MX and bought insurance there. K applied when boat was in MX and there was
a choice of law provision that claims had to be brought within 1 yr (MX law
governs) and TX SoL said 2 years and precludes parties from agreeing to
limitations periods of less than 2 years
(2) Full faith and credit does not come into play here b/c they did not raise the issue
and also b/c MX is not a state and FFCC only applies to fellow states. Also,
choice of law clause to some degrees tips the scales of recognizing the choice of
law made by the parties. This choice is very reasonable and the best law.
(3) Initial K was between Dick and MX insurance co; reinsurers are in NY and do
business in TX. Dick moves back to TX after these events. TXs claim to protect
Dick is weak.
(4) Issue: can TX law apply to the contract even though it was neither made in TX,
nor to be performed in TX?
(5) Court finds that TX law was unconstitutional in this case-TX was overreaching in
applying its law to this case. Only reason TX laws or TX courts are involved is
that Dick was able to sue there (n.b. he could not maintain this suit today) TXs
attempt to impose a greater obligation than that agreed upon and to seize property
in payment of the imposed obligation violates the guaranty against deprivation of
property without due process of law. TX statute acts to extend the rights and
obligations of the parties, rather than merely affecting a remedy attached to a
right. Public policy interests cannot here overcome the due process concerns.
This is not a FF&C case; it is a due process case
vii) Alaska Packers v. Industrial Accident Commn of California
(1) Workers comp and choice of law provision. Employee hired in CA and PPB of
Corp is CA (employee is Mexican). Alaska is place of choice of law provision. We
are not concerned with the difference between the CA and Alaska law.
(2) Issues: Does the application of CA Workers Compensation Law violate (a) the
due process clause or (b) the full faith & credit clause of the Constitution?
(3) Resolution: No violation of due process. Contract was entered into within CA;
employee was to be paid in CA; CA has interest in regulating the employeremployee relationship; difficult for employee to get back to Alaska to make claim
(4) No violation of FF&C. Inevitable that there should be conflict, but prima facie a
state can apply its own law in its own courts; CA need not always give way to AK
interests; AK interest is not greater in this case.(this suggests some kind of
balancing is going on-court appears to have backed off this after this case).
(a) There must be limit to FFCC otherwise all states would have to displace their
own laws in order to apply other states law. Can only apply in limited
instances.
Focus
Due
Process
Objective
Contacts (is it fair to apply particular states

Protection for
law to this case?) Goal is fairness and
Individuals
concerned with unfair surprise
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Interests (are the competing states interested
in having their laws applied?) Concerned
Respect for State
with state interest and goal is reducing
Sovereignty
interstate friction
b) Convergence (of Due Process and Full Faith & Credit)

i) Allstate v. Hague
(1) Stacking issue-widow receives 15K if Wis. Law applies, 45K if Minn law applies.
Case filed in Minn. (forum). Minn SC applied Minn law. Minn has a few contacts:
decedents place of employment, Allstate does business there and widow moves
there after decedents death.
(2) Wis contacts: K of insurance entered into, descendent lived, accident, Allstate
does business there and policy was delivered there.
(3) Court is deciding the Constitutional Q of whether Minn could apply its law given
(4) Reasoning: [F]or a States substantive law to be selected in a constitutionally
permissible manner, that State must have a significant contact or a significant
aggregation of contacts, creating state interests, such that choice of law is neither
arbitrary nor fundamentally unfair.
(5) Minnesotas three contacts, that, in the aggregate, according to the Plurality,
permit application of Minnesota law to be constitutional:
(a) Decedent was a member of the Minnesota workforce.
(b) Defendant Allstate does business in Minnesota.
(c) P Widow moved to Minn following the accident and prior to commencing suit
(6) How justices evaluated this case:
(a) Brennan and 4 justices: contacts and interests, not arbitrary or fundamentally
unfair test. Contacts sufficient application
(b) Stevens and 1 justice: Sovereignty threatened? Application arbitrary or
fundamentally unfair? Tests (2). Sovereignty & fundamental fairness not
impaired application.
(c) Powell and 3 justices: Contacts & interests, not fundamentally unfair. State
must have policy interest test. Contacts give rise to no legitimate interests
application.
(7) Due process concern-Nationwide policy, so Ps were not limited in driving, so
Allstate had some idea that other state law might apply to it. However, ordinarily
place of K would govern, so Allstate might have expected Wis law. Not surprising
that Minn law might apply.
(8) FFCC concern-Fact that Minn has an interest means it does not matter if Wis. has
any interest or not. Court says that FFCC concerns do not matter b/c due process
concerns were satisfied.
c) Conflicts Between Federal Law and Foreign Law
i) Presumption Against Extraterritoriality
(1) Congress is presumed to legislate with an intent that laws be enforced only within
territorial boundaries of the US absent a clear indication otherwise (assumption
since 1930s)
ii) Charming Betsy-Courts will attempt to interpret U.S. laws to be consistent with
international law, absent clear direction from Congress.
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(1) If Congress says it is regulating extraterritorially, court does not say Congress
cant do this, it can -Congress not limited by international law.
iii) Now we are dealing with Constitutional limits on federal govt when it attempts to
regulate extraterritorially.
(1) Congress is subject to Constitution and due process clause. Due process clause
limits fed. Govt in attempt to regulate internationally, but we usually do not see
courts assessing these cases re: Constitutional regulations (probably b/c of effects
doctrine suggests US interest in cases)
iv) Lauritzen v. Larsen
(1) Place of K is in NY (forum), but everything else is in Denmark. (Law of K, place
of P and D, where ship is registered). Accident happened in Cuba on ship. P has
tort action under US law, not under Denmark law.
(2) US Jones act: Any seaman who shall suffer personal injury in the course of his
employment may maintain an action for damages at law, and in such action all
statutes of the US modifying or extending CLlaw right or remedy in cases of
personal injury to railway employees shall apply.
(3) Issue: Does the Jones Act apply to a foreign seaman injured aboard a foreign
vessel while in foreign waters?
(4) Construction of the Jones Act --The Unilateral Approach
(a) Absurdity of literal reading. If read literally, the JA would confer a US right
of action which requires nothing more than that P be seaman who suffers
personal injury during the course of his employment, even in the absence of
any connection with the US. It would extend US law to all alien seamen
injured anywhere in the world in the service of watercraft of every nation.
(b) Judicial power to delineate reach of JA. When it wrote these allcomprehending words, Congress was relying on the experience of US courts
in reconciling US and foreign interests and accommodating the reach of US
laws to those of other maritime nations. Congress must have expected that in
the absence of more definite directions, the JA would be applied by US courts
to foreign events, foreign ships, and foreign seamen only in accordance with
the usual doctrine and practices of maritime law.
(c) International Comity. By usage as old as the nation, statutes have been
construed to apply only in accordance with prevalent doctrines of international
law. This accords with long-heeded admonition that an Act of Congress ought
never to be construed to violate the law of nations if any other possible
construction remains.
(d) Court says the JONES ACT SHOULD NOT REACH THAT FAR
(5) Choice of law approach -- The Bilateral Approach
(a) Avoid or resolve conflicts between competing laws by ascertaining and
valuing points of contact between the transaction and the states or
governments whose competing laws are involved. The criteria are derived
from weighing the significance of one or more connecting factors between the
shipping transaction regulated and the national interest served. . . While being
mindful of the necessity for mutual forbearance to avoid retaliation.
(6) 7 factors the court uses to id the appropriate law that should apply:
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(a) Cuba-place of wrongful act. Court dismissed this b/c on vessel, place of
wrongful act is fortuitous and trumped by law of the flag.
(b) Denmark-Law of the Flag
(c) Denmark-Allegiance or domicile of injured party
(d) Denmark-Allegiance of defendant shipowner
(e) NY/US-Place of k (fortuitous)
(f) NY/US-The law of the forum -- NY, but insufficient contacts, + choice of law
clause
(g) P argues inaccessibiltiy of foreign forum courts says this is relevant only in
forum non conviens, courts says it will apply Danish law to case, so this issue
is n/a
(h) Application: Review of factors shows overwhelming preponderance in favor
of Danish law. D was served process in NY and contract was signed there, but
there was Danish choice of law clause, which offsets those factors. No
justification for interpreting the Jones Act to intervene between foreigners and
their own law because of acts on a foreign ship in foreign waters.
(7) Result-Jones Act does not apply -- Danish law applies on remand
v) Restatement (Third) of the Foreign Relations Law of the United States
(1) Section 402
(a) Subject to section 403, a state has jurisdiction to prescribe law with respect to:
(i) Conduct that wholly, or in substantial part, takes place within its territory
(territory)
(ii) The status of persons, or interests in things, present within its territory
(territory)
(iii)
Conduct outside its territory that has or is intended to have
substantial effect within its territory (effects doctrine /territory)
1. Invoked in antitrust context. (Why SC says Hartford Fire is subject to
US laws.)
2. EU opposed this for yrs.
(iv)Activities, interests, status, or relations of its nationals outside as well as
within its territory (nationality/passive personality)
1. I.e., France has laws that protect French citizens anywhere in the
world. Could sue in local French jx even if Frenchman was hurt in CA.
(v) Certain conduct outside its territory by persons not its nationals that is
directed against the security of the state or against a limited class of other
state interests (protective)
(2) Section 403
(a) Even when one of the bases for jurisdiction under section 402 is present, a
state may not exercise jx to prescribe law w/r/t a person or activity having
connections with another state when the exercise of such jx is unreasonable
(b) How do you tell if it is unreasonable?
(i) Section 403(2): Whether the exercise of jurisdiction is unreasonable is
determined by evaluating all relevant factors, including
1. Link of the activity to the territory of the regulating state
2. Connections between regulating state and person responsible for
activity being regulated
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3. Character of activity to be regulated; importance to regulating state

4. Justified expectations
5. Importance of regulation to the international political, legal, or
economic system
6. Extent to which the regulation is consistent with the traditions of the
international system
7. Extent to which another state may have an interest in regulating the
activity
8. Likelihood of conflict with regulation by another state
(3) 403(3)-When not unreasonable for two or more states to regulate activity, but
there is a conflict, each state should evaluate its own and the other states interest,
and defer if other states interest is clearly greater
vi) Hartford Fire
(1) CA/US is the forum, where the injury is and Ps. UK is where conduct occurs and
where Ds are. Sherman Act-makes every contract, combination, or conspiracy in
unreasonable restraint of interstate or foreign commerce illegal.
(a) Construed as reaching extraterritorial behavior since the 1930s
(2) Issue: Does the Sherman Act apply to conduct in the UK which was intended to
and did produce substantial effects in the US?
(3) Answer- It is well established that the Sherman Act applies to foreign conduct
that was meant to produce and did in fact produce some substantial effect in the
US. Here the London re-insurers engaged in unlawful conspiracies to affect the
market for insurance in the US and their activities did in fact have substantial
effect
(4) Does intl comity prevent application of the Sherman Act?
(a) No. Even assuming that in a proper case a court may decline to exercise its
jurisdiction on grounds of comity, this case does not present appropriate
circumstances. Moreover, we address this AFTER determining whether or not
the court has jx; comity does not affect the courts jurisdictional analysis.
(5) Is this a true conflict?
(a) No. Fact that Britain has established a comprehensive regulatory regime to
govern the British re-insurance industry does not mean there is a true conflict.
The fact that such conduct is lawful in the jurisdiction in which it takes place
does not, in and of itself, bar application of US antitrust laws, even if the
foreign state has a strong interest in regulating such conduct. No conflict
exists, for these purposes, where a person subject to regulation can comply
with the laws of both jurisdictions. Since the London re-insurers are not
barred by British law from acting in compliance with US law, there is not
conflict.
(b) Souter says that reinsures could abide by both England and US law. So, no
conflict, they can raise conduct to meet most stringent requirements. ResultSherman act applies.
(6) Scalias Dissent
(a) Congress has legislative jurisdiction to regulate foreign conduct, and has in
fact exercised it in Sherman Act cases, thus negating the first canon of
statutory construction i.e., the presumption against extraterritoriality.
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(b) Second canon an act of Congress ought never to be construed to violate the
law of nations if any other possible construction remains Statutes should
not be interpreted to regulate foreign persons or conduct if that regulation
would conflict with principles of international law or with the limitations
customarily observed by nations upon the exercise of their powers.
(c) A nation having some basis for prescriptive jurisdiction for enacting laws
that extend to certain conduct, should nonetheless refrain from exercising that
jurisdiction when its exercise would be unreasonable. Here, it is
unimaginable that an assertion of legislation jurisdiction by the US would be
considered reasonable under international law. Scalia does not even get to
weighing the US jx against English jx.
4) Choice of Law in the International Arena: European Cross-Border

Regulation of Trusts
a) The Hague Convention on Trusts
5) Personal (Adjudicatory) Jurisdiction

a) Fundamentals of Personal Jurisdiction
i) Adjudicatory Jurisdiction
(1) Introduction
(a) More limits assigned to personal jx than choice of law b/c forum applies its
laws oftentimes.
(b) Person jx objections are waivable- if you could contest jx, and you dont you
are deemed to have waive the right. If you are a D and you appear in court,
you waive right to contest personal jx unless you make a special appearance.
(c) Moved from territorial based analysis to a min. contacts analysis historically.
(2) Does the court have authority to hear this dispute as against this particular
defendant?
(a) In state court
(i) Breadth of state statutory grant of jx given by legislature to courts.
(ii) Does state grant fall within Constitutional limits. Most say courts have jx
to extent permitted by Constitution. (often extended to limits of due
process) (due process provisions of the 14th amendment)
(b) In federal court
(i) Ability to exercise jx but court also have provided D notice that jx is being
asserted against them.
(ii) Breadth of federal grants of jurisdiction
1. Laws provide for nationwide service of process in certain cases
(antitrust-Fed court can serve process on anyone anywhere in US)
2. Otherwise dictated by Federal Rules of Civil Procedure, which
provide, inter alia, that if a D is subject to state court jurisdiction, she
is also subject to the jurisdiction of a federal court in that state
(iii)
Does the federal grant fall within Constitutional limits (due process
provisions of the 5th amendment)
ii) Pennoyer v. Neff
(1) Still good law; not the only way to exercise jx, but is one way to.
(2) Classic territorial limit on exercise of jurisdiction
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(a) D had to be present in the territory of the forum (presence could exist by
proxy if D owned property) AND
(b) Defendant had to be served process in the territory of the forum
iii) World-Wide Volkswagen
(1) Ds had to be served actual notice of suit-this is not contested here
(a) (Pennoyers territorial limits on service relaxed service must be reasonably
calculated to give actual notice)
(2) Minimum contacts must satisfy three components (Pennoyers notion of actual
presence also no longer required):
(a) State interests (FF&C). There is some limit of FF&C on exercise of personal
jx. Can conflict with another states attempt to exercise personal jx-has to do
with interests of the state (is is interested in exercising jx).
(i) OK had interests-hospital in OK, accident in OK, etc.
(b) Convenience requirement reasonableness; must not offend notions of fair
play and substantial justice) (due process)
(i) Majority focuses of D; Dissent focuses on P and D
(ii) Many times there is more than 1 forum that is convenient or available. P
can choose forum, but choice limited to where D has presence. Here D
won out-there is no one place convenient for both P and D
(c) Unfair Surprise (due process)
(i) Effects alone insufficient (enough for choice of law, but not for personal
jx); foreseeability insufficient; some purposeful contacts with the forum
required such that D can reasonably anticipate being haled into court
b) Adjudicatory Authority in International Cases
i) Asahi Metal Industry Co. v. Superior Ct. of CA
(1) Zurcher was riding his motorcycle on California highway and due to a sudden flat
tire, he got into an accident which rendered him seriously injured and his wife
who was the passenger was killed. Zurcher brought suit against Chen Shin
Rubber Co., a Taiwanese manufacturer of the tire tube. Chen Shin in turn filed
cross complaint seeking indemnification from its codefendants and Asahi Metal
Industry Co. which supplied tubes valve to Chen Shin.
(2) Asahi argued that CA could not exercise jx over it since it lacked sufficient
contacts with the state. Asahi (D) did not do business in CA, nor did it import any
products into CA. Instead, it sold its valve assemblies to Cheng Shin and the
valve assemblies were shipped to Taiwan. Asahi (D) claimed that it had never
contemplated that it might be subject to suit in CA b/c of sales to Cheng Shin in
Taiwan but Cheng Shin claimed that Asahi (D) definitely knew that its products
were being sold in CA. Ashai is a Japan based company. Chen Shin was one of
Ashais customers and the sale of valves took place in Taiwan. Chen Shin claims
that Ashai knew that by placing its products in the stream of commerce, some of
these products will end up in CA.
(3) Part II.A (Plurality)
(a) Purposeful Availment
(i) Predictability-permit Ds to shape their conduct. But there is also a
relatively loose requirement and not a strict test. Concerned with limiting
knowledge.
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(ii) Reasonableness (quid pro quo)

(b) Minimum contacts must be based on the deliberate acts of the D an action
of the defendant purposefully directed toward the forum state
(c) Stream of commerce (foreseeability) insufficient; knowledge is insufficient;
intent is required
(4) Part II.B (Majority)
(a) Traditional notions of fair play and substantial justice
(i) Burden on the defendant (dragged halfway round the world)
(ii) Interests of the forum state (minimal; this is merely an indemnity action,
nothing to do with giving redress to P)
(iii)
Plaintiffs interest in obtaining relief (Cheng Shin may want relief,
but does it need to get it in California? remedy available in Japan or
Taiwan)
(iv) Interstate judicial systems interest in obtaining the most efficient
resolution of controversies (litigation between foreign corporations better
pursued in their home court(s)
ii) Post Asahi Test for jx
(1) Need
(a) A State interest
(b) That litigating in the forum is not unduly inconvenient or unreasonable and
(c) Purposeful availment(?)
iii) Due Process
(1) Specific Jurisdiction Permissible if nonresident corporate defendant has certain
minimum contacts with forum such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice. Controversy arises
out of or is related to the defendants contacts with the forum
(2) General Jurisdiction Continuous and systematic general business contacts
(a) Analogy to personal domicile or residence
(b) Justification?
(i) Assumption of fairness to defendant?
(ii) States regulatory ability?
(iii)
Need to have at least one forum?
iv) Helicopteros Nacionales de Colombia, S.A. v. Hall
(1) Joint venture doing business in Peru, but based in TX, signs K with Columbian
company. Columbian company has limited contacts with TX (purchase of
helicopters, related training trips, payments from TX banks).
(2) Close to getting general jx, but majority dismisses specific jx. Majority says P did
not plead specific jx and that is why it is not in front of them.
(3) One of COA is negligence on part of pilot, and pilot is trained in TX-so it would
seem that TX is interested.
(4) Specific Jx
(a) No. Parties stipulate insufficiency of contacts
(5) General Jx Continuous and systematic general business contacts
(a) Helicol CEO trip to Houston
(b) Checks drawn on Texas bank
(c) Purchase of Bell Helicopters and related training trips
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(i) More important for specific jurisdiction?

(6) Dissent says it could have been specific jx b/c of negligence claim.
(7) jx of necessity-P ought to have some forum. So a US court, even if it does not
have personal jx might exercise jx if there is no other court that P can get relief.
Most courts are reluctant to embrace this notion.
v) Due Process
(1) Concerns:
(a) Fairness to defendant
(i) Predictability
(ii) Risk assessment
(iii)
Quid pro quo (is business receiving benefits from state?)
(iv) Large quantum of unrelated contacts or fewer strongly related contacts
(b) Interest of state
(i) Regulatory function (Specific Jx)
1. Territorial
2. Effects-based
(ii) Exercise of authority over members of political community (General Jx)
(2) Lower courts like Brennan dissent from Helicopteros and are inclined to exercise
jx
c) Adjudicatory Authority in Other Countries-Comparative Adjudicatory Jx
i) In US -- Due Process is core issue
(1) Concerns:
(a) Fairness to defendant
(i) Predictability
(ii) Risk assessment
(iii)
Quid pro quo (is business receiving benefits from state?)
(iv) Large quantum of unrelated contacts or fewer strongly related contacts
(b) Interest of state
(i) Regulatory function (Specific Jx)
1. Territorial
2. Effects-based
(ii) Exercise of authority over members of political community (General Jx)
(2) Comparative Jurisdiction
(a) General Jurisdiction courts have power to adjudicate virtually any kind of
dispute
(i) Direct
1. physical presence
2. doing business
3. Incorporation
4. habitual residence
5. Domicile
(ii) Indirect
1. Ownership of local property
(b) Specific Jurisdiction courts have power only over controversies deriving
from, or closely related to, the circumstances relied on to establish jurisdiction
in the forum
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(c) Category-specific jurisdiction general in the sense that claims to be litigated

need not be linked, as under specific jurisdiction, but specific in that the
jurisdiction extends only to certain subjects
(i) E.g. German Code of Civil Procedure Rule 29, which says that a court in
the place of performance has jurisdiction over all matters relating to the
contract (including contract formation)
(d) Universal Jurisdiction inherent duty to exercise jurisdiction in certain
matters e.g. torture, genocide
ii) Examples of Jurisdictional Bases
(1) Nationality of the plaintiff art. 14 of the French Civil Code:
(a) An alien, even one not residing in France, may be summoned before the
French courts for the fulfillment of obligations contracted by him in France
with a French person; he may be brought before the French courts for
obligations contracted by him in a foreign country toward French people.
(b) N.b. French law also provides that any French national can be sued in France,
regardless of where the obligation arose and regardless of where the French
national lives. In theory, but subject to exceptions, French law also says this
jurisdiction is exclusive.
(2) Unlimited jurisdiction on the local presence of property German Code of Civil
Procedure Section 23 (also Japan, Austria & Belgium)
(a) Applies to tangible or intangible property; applies to movables and
immovables. No limitation in value of judgment to be given
(3) Service of Process confers jurisdiction
(a) for Ds within England, jx is perfected by service of process within territory
(tag jx)
(b) For Ds outside England, service may be performed out of the jx with the
permission of the court (under Rule 6.20) if:
(i) A claim is made against a person domiciled in the jurisdiction
(ii) A claim is made for an injunction ordering the defendant to do or refrain
from doing an act within the jurisdiction
(iii)
A claim is made against someone on whom the claim form has
been or will be served and
1. There is between the claimant and that person a real issue which it is
reasonable for the court to try and
2. The claimant wishes to serve the claim form on another person who is
a necessary or proper party to that claim
(c) A claim is made in respect of a contract where the contract:
(i) Was made within the jurisdiction
(ii) Was made by or through an agent trading or residing within the jx
(iii)
Is governed by English law (or)
(iv) Contains a forum-selection clause
(v) A claim is made in respect of a breach of contract committed within the
jurisdiction
iii) Brussels Regulation (formerly Brussels Convention)
(1) Double Convention
(a) Addresses Jurisdiction & Recognition and Enforcement of Judgments
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(2) Jurisdiction
(a) General Bases
(i) Domicile
(b) Specific Bases, e.g.,
(i) Contract place of performance
(ii) Tort place of injury
(3) NOT Exorbitant Bases
(a) French Civil Code art. 14, English tag jurisdiction, Quasi-in-rem
jurisdiction
d) Jurisdiction based on Property-quasi in-rem jx
i) Definitions
(1) In personam-jx over person based on personal contacts/relationship with forum
(2) In rem jurisdiction over property within the forum to adjudicate rights related to
the property
(3) Quasi-in-rem jurisdiction over property as a ruse to permit the exercise of
jurisdiction over the person
ii) Quasi-in-rem Jurisdiction in the United States
(1) Property within the forum is sufficient to establish jurisdiction if the property is
attached at the commencement of the proceeding
(2) Jurisdiction is limited the court can only give a judgment up to the value of the
property
iii) Old Rule: Harris v. Balk (1905)
(1) Harris owes Balk money (property is Harriss debt to Balk)
(2) Balk owes Epstein money
(3) Epstein serves Harris in Maryland, thereby attaching Balks property; Balk is
subject to the jurisdiction of the Maryland court because Balks property had been
attached (does not want Harris himself, he wants Balks property)
(4) Property within forums is enough to establish jx if property is attached at start of
proceeding. Limited to the value of the property attached.
iv) Shaffer v. Heitner
(1) Heitner sues in Delaware: Greyhound Corp., Greyhound Lines, 28 present or
former officers of one or both corporations
(2) Heitner files motion to sequester property of non-residents amounting to 82,000
shares of Greyhound common stock and some stock options. 19 Defendants
owned stock. 2 Defendants owned options
(3) According to DE law, DE is the situs of all stock in a DE corporation. Q is
whether Heitner can use ownership of DE stock as excuse to haul Ds in court to
DE? Can only get 21 of Ds on basis b/c 7 of Ds dont own any stock.
(4) Court says International Shoe standard of fair play and substantial justice
governs proceedings in rem as well as proceedings in personam
(a) Jx over a thing is the same as saying jx over the interests of persons in a thing
(b) Jurisdiction over property in the forum when the property itself is the source
of the litigation will (nearly) always satisfy those standards
(c) When the only role of the property is to provide the basis for bringing the
defendant into court, the standards might not be satisfied.We therefore
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conclude that all assertions of state-court jx must be evaluated according to

the standards set forth in International Shoe and its progeny.
(5) Concurrences of Powell and Stevens suggest that history/tradition goes some way
towards answering the fair play inquiry
(a) DE has not by statute said that directors/officers are subject to DE jx. Could
DE pass statute that says this? Yes, they did pass this statute 2 wks later.
Choice of law analysis differs from exercise of personal jx. DE law can apply
to internal affairs doctrine. But, does this mean you are subject to suit in DE
for any matter relating to corp.? Not enough for DE legislature to pass law
that says they have jx over officers, they still must satisfy International Shoe
standards. Q is if min. contacts are enough-this is a separate Q.
(6) Brennans concurrence/dissent
(a) Minimum contacts analysis should apply, and should suffice here because:
(i) DE has a substantial interest in providing redress for victims of corporate
misconduct
(ii) Jx should be read expansively if state has a manifest regulatory interest
(iii)
Dx has an interest in overseeing the affairs of a Delaware
corporation
(iv) DE law should apply; reasonable to have it applied by a Delaware court
(v) The fact that the shareholders have taken on responsibilities governed by
Delaware law goes some way towards informing them that they are likely
subject to the jurisdiction of Delaware courts
e) Transient Jurisdiction
i) Burnham v. Superior Court
(1) Burnham is served with process in SF when visiting his children. CA court
exercises jurisdiction over him based on this service of process (tag jx)
(2) Issue: Does the assertion of jx by means of service of process over a person
physically present in the forum violate traditional notions of fair play and
substantial justice?
(3) Scalia Plurality: Was tag jurisdiction recognized in 1868, when the 14th
Amendment was adopted? Yes. Has it been recognized/applied since then? Yes. It
must be consistent with due process (even if one looks to contemporary
standards as espoused by Justice Brennan). Moreover, its traditional nature gives
rise to the expectation of Ds that they can be served if within the state; thus, it
comports with any fairness concerns. Addition of International Shoe inquiry
broadens the ways in which jurisdiction can be asserted from the limited territorial
ground of Pennoyer, but it does not limit Pennoyer. Shaffer v. Heitner dealt with
absent defendants; thus, applying fair play and substantial justice notions to see
whether they could be brought within the forum was warranted
(4) Brennan concurrence: Tradition is not the only factor court should consider in
considering whether the assertion of jx is consistent with due process. Tradition is
important in that it gives Ds notice that voluntary presence in the forum will make
him subject to suit there. Transient D avail themselves of benefits of the forum
state by visiting: health and safety benefits guaranteed by police, fire, and
emergency medical services, travel on states roads and waterways, fruits of the
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states economy, and has the right to file a suit in the state; thus should be obliged
to defend. Burdens on Ds are slight given modern transport and communications
ii) Consent as a basis for Jurisdiction
(1) A defendant can waive an objection to personal jurisdiction
(2) A defendant can choose a forum (effectively consenting to the forums
jurisdiction) in a choice-of-forum clause
(a) A choice-of-forum clause can also oust a court of jurisdiction by providing for
only one forum to hear the case
PERSONAL JURISDICTION
CHOICE OF LAW
Concerned with Defendants Contacts
Concerned with all Contacts
Concerned with states reason for asserting Concerned with State Sovereignty & interstate
power
relations
Post-Occurrence Events Fully Relevant
Post-Occurrence Events may be Relevant
f) Service of Process & Forum Selection Clauses in Transnational Controversies

i) Why serve process?
(1) Effectuates formal assertion of the authority of the court
(2) Serves notice to the defendant that her rights are the issue of a court proceeding
(a) Separate from assertion of authority in the court. In civil law countries, this
distinction is more complicated (civil law countries do not allow informal,
service of process by mail, etc.)
ii) Letters Rogatory
(1) Plaintiff requests court in State A to prepare an initiating document
(2) Document is sent to federal state department in State A
(3) Document is transmitted to state department in State B
(4) State B state department transmits document justice department
(5) Justice department transmits document to the court in the area where defendant is
believed to be
(6) Court serves process in accordance with law of state B
(7) Above happens in reverse
(8) May still have to do this with countries that did not join the Hague Convention.
iii) Hague Convention on Service of Process-limited to civil and commercial matters
(1) Necessary b/c process without it was not good. Before, service of process abroad
meant that they had to use letters rogatory.
(2) Streamlines and simplifies process
(3) Each State party designates a Central Authority, which serves process in
accordance with the law of that State
(a) Court in State A transmits documents to the Central Authority in State B
(b) Central Authority serves process in accordance with the law of State B
(c) Central Authority transmits certificate of service to court in State A
(4) Volkswagenwerk AG v. Schlunk
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(a) P first files a wrongful death action against VWoA. They then refile and reserve VWoA on behalf of VWAG. Schlunk serves Volkswagen AG through its
wholly-owned subsidiary, Volkswagen of America
(b) Lower court finds that VWoA is agent of VWAG. Thus, service is proper. But,
VWAG invokes the Hague Convention if is applies, it is the exclusive means
for serving process. P did not serve under convention and so if it applies, the
service is not proper and D should win.
(c) Hague Convention language: The Convention shall apply in all cases, in civil
or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.
(d) Was there occasion to transmit a judicial document abroad?
(i) Convention does not answer this Q, so court say must look to forum law.
(ii) Whose law governs this question?
1. US SC says forum law-Illinois long arm statute said substituted service
is ok, therefore, no occasion to transmit service abroad and therefore
service was ok.
(iii)
convention wanted to outlaw notification au parquet, with is very
similar to this, which seems to say that this outcome is not what was
desired by convention
(iv) SC says that internal law was not talked about, so it is allowed. Appears
unlikely that drafters of convention meant the internal law of the forum
could dictate when service abroad is required
(v) Hague convention cannot be used as tag jx, its only about notice; service
under convention does not establish jx- you need separate jx basis.
(e) Hague convention preempts state law when it applies. If you let state law say
when it applies, then you undercut effectiveness of the convention.
(f) Service of process by mail under convention
(i) States that object to service by mail cannot be served this way and satisfy
terms of convention, but this does not stop you from doing this. If
company does not object and there is a default judgment against them,
then this judgment would not be enforceable in that country. US would
enforce this judgment.
(5) Forum selection agreements
(a) In international cases, forum selection clauses are ok and are exclusive. W/r/t/
domestic forum selection agreements, there is more reluctance to assume they
are exclusive, but this is waning.
(b) Concern is if parties are negotiating on equal footing. If parties did not have
equal footing and clause seems unreasonable, court can police and strike down
the forum Ks.
6) Recognition & Enforcement of Judgments

a) Res Judicata & Basic Principles
i) Res Judicata (Claim Preclusion)
(1) Identity of both parties (or privity)
(2) Identity of cause of action
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(3) Can include claims not actually brought but which could have been brought
(compulsory joinder)
ii) Collateral Estoppel (Issue Preclusion)
(1) Identity of party against whom prior judgment is sought to be sued must be the
same in both proceedings
(2) Issue must have been:
(a) Litigated by the parties
(b) Determined by the tribunal
(c) Essential to judgment of the tribunal
iii) Full Faith and Credit shall be given in each State to the Public Acts, Records, and
judicial Proceedings of every other state. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be proved,
and the Effect thereof. United States Constitution, Article IV, Section 1
iv) Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall
have the same full faith and credit in every court within the United States and its
Territories and Possessions as they have by law or usage in the courts of such State,
Territory, or Possession from which they are taken. 28 U.S.C. 1738
(1) Have FFCC for efficiency and finality. Some concerns that there are problems
with justice-if first court got it wrong then justice is hurt in favor of finality, but
Constitution says FFCC is right.
(2) USC 1738 goes farther than Constitution b/c Constitution does not say anything
about state court judgments and federal courts. USC says state judgments will be
given effect by federal courts.
(3) Congress has not said if state courts must give FFCC to federal courts, but it
assumed.
v) Enforcement of judgment
(1) If losing party does not have assets in F1 then P must go to F2, and must convert
F1 judgment to F2 judgment b/c F2 is limited. FFCC helps b/c F1 judgment is
taken to F2 and it is reduced to an F2 judgment. Uniform foreign judgment
recognition act allows P to get F2 judgment and get $.
vi) Fauntleroy v. Lum
(1) In Miss. dealing in futures was illegal at this time. Contracting parties made future
contract and it was unenforceable in Miss and knew it was illegal. They made it
subject to arbitration as well.
(2) Missouri court upheld arbitrator award and turned it into judgment. So they had
judgment for P from Missouri court. D tried to argue that Miss. law should
govern. Missouri court got it wrong and should not have upheld arbitrator award.
Ps then take award to Miss and Miss. SC will not order enforcement of Missouri
court order for Ps.
(3) US SC reversed the Mississippi SC and held that the Mississippi SC was required
to give full faith and credit to the Missouri judgment.
(4) . This is iron law of FFCC
vii) Yarborough v. Yarborough
(1) Child support K. 2 courts (GA and SC) marital domicile is GA and father in GA.
Child in SC after divorce and GA court entered non-modifiable support order of
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$1750. SC ordered additional $50 a month in child support. F1 judgment said

1750 is entire judgment and SC orders 2nd judgment.
(2) US SC must resolve as to whether SC court can ignore GA order. SC said they
could not ignore judgment. Fact that there was a final decree meant GA order was
non-modifiable and had to be given effect. One states judgment can preclude
another state from ordering support for a child domiciled there
(3) If you are going to try to challenge final order of a court, must do it directly,
cannot do it by means of collateral attack as between states.
(4) [F]or a States substantive law to be selected in a constitutionally permissible
manner, that State must have a significant contact or a significant aggregation of
contacts, creating state interests, such that choice of law is neither arbitrary nor
fundamentally unfair. Allstate v. Hague
viii) Congressional action to determine FFCC in special circumstances
(1) 1980-1738A: F2 must give effect to child custody agreement of F1. This interacts
with state laws.
(2) 1994-1738B Child support: state must give FFCC to child support decree in a
state that has adopted the uniform family act which says there shall only be one jx
that controls childs support order. Also, all child support decrees are modifiable
now.
(3) 1996-1738C Same Sex marriage (DOMA)-says that no state is required to give
effect to any proceeding of any other state respecting a relationship between
persons of the same sex.
(a) Permissive language. Purports to amend FFCC. This is unnecessary b/c it is
not a court judgment, so FFCC does not apply in the same way. Marriages
have always been treated as choice of law issue. States do not have to give
effect to other states marriages, but generally states have recognized
marriages from other states.
b) Full Faith and Credit Foreclosure of Jurisdictional Issues (Preclusion)
i) Durfee v. Duke(1) F-1: Nebraska SC held b/c the change in the course of the river was the result of
avulsion, the boundary remained the same and the land was in Nebraska.
(2) F-2: Fed. Ct of Appeals, on appeal from an action brought in Fed. DC in Missouri,
held that FFCC did not preclude Missouri Ct from examining whether the
Nebraska decision was invalid because of lack of subject matter jx.
ii) Treinies v. Sunshine Mining Co.
(1) F-1: Washington Probate Court-Pelkes is the Owner
(2) F-2: Idaho SC-Wash judgment is invalid for lack of jx, Mason is the owner
(3) F-3: Idaho Federal Court Interpleader-Mason is the owner because F-3 is required
to give Full Faith and Credit to the Judgment of F-2
(4) Restatement (2nd) of Judgments 15: Inconsistent Judgments. When in 2 actions
inconsistent final judgments are rendered, it is the later, not the earlier, judgment
that is accorded conclusive effect in a third action under the rules of res judicata.
Issue Fully
Litigated
Appeared but Did Not

Litigate the Issue
Did Not Appear
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Bjorklund
Personal
Jurisdiction
If bound in F-1, bound Appearance in F-1

Cannot be bound in F-1
in F-2. Usually bound. usually a waiver. If bound because of due process. Not
Baldwin
in F-1, bound in F-2.
bound in F-2.
Subject
Matter
Jurisdiction
If bound in F-1, bound If bound in F-1, bound in If bound in F-1, bound in F-2.
in F-2. Usually bound. F-2. Usually bound.
Depends on Circumstances
Durfee
Underwriters, Chicot
iii) Section 1738 requires that judgments in F-1 be given the same effect in F-2 as they
have in F-1. Is there an exception to that command if:
(1) F-1 misinterprets the law of F-2 (Fauntleroy)? [No]
(2) The F-1 decision is made at a time at which the significant future interests of F-2
are unknown (Yarborough)? [No, but legislative override]
(3) The F-1 decision is rendered without personal jurisdiction? [Yes, but not if waived
or fully and fairly litigated]
(4) The F-1 decision is rendered without subject matter jurisdiction (Durfee)? [Yes,
but not if fully and fairly litigated (and probably not if waived/ignored)]
(5) The F-1 judgment failed to give full faith and credit to a previous judgment
(Treinies)? [No-no exception]
c) Federal/State Recognition of Judgments
i) Generally
(1) FF&C of the Constitution and 28 USC 1738 apply to recognition of STATE
court judgments (does not say anything about federal courts giving effect to other
federal courts or state courts giving effect to federal courts)
(2) What about recognition of FEDERAL court judgments?
(a) Federal Court judgments are also entitled to preclusive effect
(b) Article III & Supremacy Clause
(i) Erie v. Tompkins-established that there is no federal CL of procedure in
diversity cases. Designed to prevent forum shopping. Federal court sitting
in diversity should be virtually the same as state court in same jx. Same
substantive law applies-state in which is sits is the law that applies. Fed.
Rules of Civ Pro. govern procedure. Problem is that is not always easy to
tell what is substantive and what is procedure.
ii) Semtek v. Lockheed
(1) Court grapples with issue preclusion b/c it is not really dealt with in federal rulesmust ask if state laws fill in gap when the federal CL does not answer the Q.
(2) Fed. court sitting in diversity here. Issue is what law determines the preclusive
effect of a CA federal DC judgment in a later Maryland state court proceeding?
(3) Court says: Federal CL governs the claim preclusion effect of a dismissal by a
federal court sitting in diversity. Federal CL incorporates by reference the law of
the state in which the federal court is sitting; CAs claim preclusion rules apply
(4) Problem with the case is discussion of 41(b) is not persuasive. Scalia does not
want 41(b) to be claim preclusion rule. Fact that a claim is dismissed on merits
might or might not mean it should have preclusive effect. Interpretation of 41(b)
goes against usual interpretation.
(5) Also, fact that a MD court is going to treat a federal decision differently than it
would have treated a state decision b/c of the way SoL have been treated is a
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Bjorklund
problem. SoL determinations are exception to FFCC. SoL are procedural and not
substantive and justified by idea that SoL prevents remedy. But does not eliminate
underlying right.
(a) So if CA has 2 yr. SoL, MD can say has 3 yr SoL and can give remedy
regardless of what CA court would do.
(6) Better result:
(a) MD court would give the fed. court the same treatment it would have
accorded a judgment by a state court in jx in which the fed. court was sitting.
(b) Marylands statute of limitations would thus be applicable
(i) Reflection of the treatment of SoL as procedural under choice of law rules
and thus governed by the law of the forum
iii) Marrese v. American Acad. Orthopaedic Surgeons
(1) Federal court is trying to decide what preclusive effect to give to state courts
judgment and what rules govern the preclusive effect. State court dismisses case
for failure to state a claim on which relief can be granted
(2) P re-files in federal court a claim based on the Sherman Act, which could not have
been filed in state court (fed courts have exclusive jx over Sherman)
(3) What rules govern the preclusive effect of the state courts judgment? How
broadly does the state courts judgment reach? Re-filed claim could not have been
filed in state court.
(4) S. Court says federal court should use state preclusion rules. Yet no Illinois court
will ever rule whether a federal antitrust action should be barred by a prior state
court proceeding. IL does have state antitrust law and Ds argue they could have
brought state antitrust COA in state ct.
(5) Fed. DC (on remand) goes with Restatement rule, which says state proceedings do
not bar subsequent lawsuits within the exclusive jx of the fed. courts
7) Recognition of Foreign Country Judgments

a) Comity & Codification
i) Generally
(1) No FFCC here-does not apply to International judgments and 1738 does not
apply and Congress has never adopted a law that dictates recognition and
enforcements of international courts.
(2) We use CL and a web of statutes (Uniform Enforcement of Foreign $ Judgment
Acts, etc.) States adopted the uniform act, but not uniformly.
(3) Res judicata (what preclusive effect does judgment of foreign nation have?)
(4) Collateral estoppel (Issue preclusion-if foreign court decided some issue, need a
US court give effect to that determination?)
(5) Formality preceding enforcement (exequatur)
ii) Rationale for Enforcement of Foreign Judgments
(1) Desirability of end to litigation
(2) Creation of vested rights
(3) Obligations that merit support
(4) Comity-trying to give effect of interests of individual and obligation imposed by
foreign court, etc.
iii) Rationale Against Enforcement of Foreign Judgments
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Bjorklund
(1) General distrust of other courts (especially if winning party is local to F1, and the
losing party is local to F2)
(2) Public policy concerns
(3) Reciprocity
i) Hilton v. Guyot
(1) NY citizens doing business in France. Sued it France. Appears and loses-owe
French man $. P comes to NY and tries to get $.
(2) SC takes a middle ground-recognition and enforcement should not be automatic,
but should be available.
(3) Recognition & Enforcement should be granted if:
(a) Full & fair trial abroad
(b) Court of competent jurisdiction
(c) Trial conducted in accordance with regular proceedings
(d) Notice of lawsuit given to defendant
(e) System of jurisprudence likely to secure fair result
(f) No prejudice in the court
(g) No prejudice in system of laws
(h) No fraud in procuring the judgment
(i) No other special reason militates against enforcement
(j) F1 court would recognize F2 courts judgment (Reciprocity)-most states have
done away with this. Hiltons ended up winning here b/c of the reciprocity Q.
ii) Uniform Foreign Money-Judgments Recognition Act
(1) Applies in 31 states (but sometimes ratifications departed significantly from the
text of the uniform act)
(a) Final judgments
(b) Money judgments only (no injunctions)
(c) Enforceable as if a judgment of a sister state
(d) Unless an exception applies
(2) 4(a) mandatory non-recognition): A foreign judgment is not conclusive if:
(a) The judgment was rendered under a system which does not provide impartial
tribunals or procedures compatible with the requirements of due process of
law
(b) The foreign court did not have personal jurisdiction over the defendant
(c) The foreign court did not have jurisdiction over the subject matter
(3) 4(b) (discretionary non-recognition)-A foreign judgment need not be recognized
if:
(a) Defendant in the proceedings did not receive notice of the proceedings in
sufficient time to enable him to defend
(b) The judgment was obtained by fraud
(c) The cause of action is repugnant to the public policy of F2
(d) The judgment conflicts with another final and conclusive judgment
(e) The proceeding in the foreign court was contrary to agreement of the parties
to resolve the dispute elsewhere
(f) In a tag jurisdiction case, the foreign court was a seriously inconvenient
forum for trial of the action (UFMJRA was written before Burnham)
(4) Personal jurisdiction judgment shall not be refused enforcement if the D:
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Spring 2008
Bjorklund
(a) Was served personally in the foreign state

(b) Voluntarily appeared, other than to protect property seized or to object to
jurisdiction
(c) Had previously agreed to submit to the jurisdiction of the foreign court
(d) Was domiciled in the foreign state
(e) Had a business office in the foreign state and the proceedings arose out of that
business
(f) Operated a motor vehicle or airplane in the state and the claim arose out of
such operation
(g) was subject to the personal jurisdiction of the court on other grounds
recognized by the enforcing state
i) ALI Judgments Project
(1) If judgment debtor challenges the jurisdiction of the rendering court:
(a) Findings of fact pertinent to the jurisdiction of the rendering court are
conclusive in the proceeding in the United States (like sister state judgments)
(b) Legal determinations are conclusive in the proceedings in US as to the jx of
the rendering court under the law of that state
(c) But the judgment debtor may show that recognition or enforcement is
unacceptable because jx was unacceptable under other standards (e.g. U.S.
Constitutional standards).
b) Other Countries approaches to recognition & the Question of Jurisdiction
i) Brussels Regulation (formerly Brussels & Lugano Conventions)
(1) Double Convention
(a) Jurisdiction
(b) Judgments
(2) For domiciliaries of States Parties to the Convention, jx can be exercised only on
limited grounds, excluding exorbitant bases of jx (have more protection)
(3) For non-domiciliaries, jurisdiction can be exercised pursuant to a States regular
criteria, including exorbitant bases
(a) i.e. tag jx in UK, jx under French civil code re: injury to French national and
quasi in rem jx in Germany over possessions as proxy for you
(4) All judgments of States Parties are enforceable in every other State Party
regardless of the jurisdictional basis employed
(a) If I go to UK and served with process, suffer judgment there, judgment is
enforceable in any place party to convention.
ii) Hilton v. Guyot
(1) Hilton and Libbey argued that they were compelled to appear before the French
court to defend their property. Jx over them thus was not proper & ensuring
judgment should not be recognized
(2) U.S. S. Ct. Defendants had a storehouse and an agent in Paris, and were
accustomed to purchase large quantities of goods there
(a) They were thus subject to the jurisdiction of the French courts
iii) Nippon Emo-Trans Co., Ltd. v. Emo-Trans, Inc.
(1) EDNY (diversity) governed by NY law, including NY conflicts principles. NET
filed an action in Japan. Japanese court found it had jurisdiction over ETI,
conducted a trial, and awarded damages against ETI. ETI participated in the trial
50
Spring 2008
Bjorklund
(2) NET came to NY to enforce the judgment. ETI challenged the Japanese courts
decision on the ground that it lacked jurisdiction. ETI voluntarily appeared in
Tokyo by litigating the case and thus waived opportunity to object. Question of
voluntariness is judged by F2 (NY) standards
(3) Under those standards appearance was voluntary
(a) (EDNY doesnt really like this outcome, but thinks it is dictated by the text of
the statute)
(4) However, even if one were to revisit the Tokyo courts assertion of jx, ETI would
lose b/c assertion of jx was ok, albeit not on the grounds asserted by Tokyo court
(a) Ds duty to remit payments to NET is an obligation to be performed in Japan
(b) Presence of ETIs affiliate in Japan, which assisted in defending the lawsuit
(5) Despite general approval of preclusive effect afforded to foreign judgments, it is
okay to revisit that courts determination that it had jurisdiction
(6) Exercise of jurisdiction measured against NY standards
(a) NY Long-arm statute
(b) US Constitution (due process)
(7) ETI did business in Japan sufficient to support jurisdiction measured against
both criteria. EDNY thus upheld exercise of jurisdiction by the Tokyo court
iv) How do we judge foreign courts jx?
(1) In foreign jx matters, usually the court applies its own standards (i.e. this case
applies NY law)
(2) In sister state judgments, courts answer Q under standards of rendering state.
c) Procedural Fairness
i) Hilton v. Guyot
(1) D argued that courts judgment was not entitled to recognition b/c it violated due
process (not subject to x-exam and docs submitted as evidence would not be
allowed in US)
(2) Court did not compare French and US procedures. They said mere fact there were
differences was not enough to impeach the judgment. Courts in US reviewing
judgments from foreign states are not meant to be like appeals court (they dont
have all info/record to review in total).
(3) D argued that decisions by French court were based on false statements. If it is a
fraud allegation that could have been raised in foreign court, then make argument
before foreign court, otherwise you lose this argument. Only way fraud could be
grounds for second guessing judgment is if you did not and could not have known
about fraud.
(4) Full & fair trial abroad
(5) Trial conducted in accordance with regular proceedings
(6) Notice of lawsuit given to defendant
(7) System of jurisprudence likely to secure fair result
(8) No prejudice in the court, No prejudice in system of laws, No fraud in procuring
the judgment, No other special reason militates against enforcement
ii) Cooley v. Weinberger
(1) Issue-can wife who killed her husband get Social Security benefits?
(a) Yes, if killing was not a felonious and intentional homicide
(b) No, if killing was a felonious and intentional homicide
51
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Bjorklund
(2) Cooley killed her H in Iran, where she was convicted of having committed
willful homicide. Court finds that Ds arguments do not show that Irans system
is totally inadequate, nor does she show that she herself did not get a fare trial
there.
(3) Cooleys arguments: Conviction obtained by methods that did not comport with
due process and were so shocking in nature that they should not be recognized by
the courts of the United States. She was:
(a) Not allowed to consult with her attorney
(b) Not advised of her rights (no Miranda)
(c) Denied the right to post bail
(d) Never indicted
(e) Not given the right to cross-examine witnesses
(f) Not proven guilty beyond a reasonable doubt
(g) She also submitted evidence that she was not treated well.
iii) Bank Melli Iran v. Pahlavi
(1) California Code 1713-1713.8-Recognition and enforcement prohibited when
rendered by a court in violation of due process
(2) Banks attempt to enforce civil (default) judgments worth $32,000,000.
(3) Pahlavis Defense: Iranian judgments given in a manner that did not accord with
basics of due process
(a) Specifics of Process Accorded:
(i) Service by publication in Iran
(ii) Default judgments rendered on promissory notes
(iii)
Not much evidence to show there was anything wrong with these
proceedings as such (no allegation that she lacked actual notice, for
example)
(4) Did Pahlavi show that she did not/could not get due process in Iran?
(a) Pahlavis evidence:
(i) Consular information sheets re anti-American sentiment and problems for
dual nationals
(ii) Iran is state sponsor of terrorism
(b) Court ruled in her favor and did not recognize judgment. Courts evidence
(i) Trials rarely held in public and are highly politicized
(ii) Judges are not independent
(iii)
US claimants have little expectation of justice
(iv) Atty are discouraged from representing politically charged D
(5) Judicial estoppel argument: Pahlavi argued forum non conveniens in another
unrelated case on the grounds that Iran was the appropriate forum. Here she
argues that Iran is completely unsuitable forum
d) Substantive Defenses & the Hague Choice of Courts Convention
i) Bachchan v. India Abroad Pubs Inc.
(1) Indian national institutes proceedings against a New York publisher seeking
recognition of an English judgment rendered against the publisher for having
published an article defaming Bachchan
(2) Plaintiff in UK & NY Bachchan (defamed Indian national). Defendant in UK &
NY Indian Abroad Inc (U.S.) NY news operator & publisher
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(3) India Abroad (NY): Ds New York newspaper. India Abroad (UK): Ds English
subsidiary. India Abroad (London): London newspaper published by IAUK.
Dagens Nyjeter (Sweden): newspaper that initially published story defamatory to
plaintiff (settled case & apologized)
(4) Was the COA on which judgment was based contrary to public policy of NY?
(a) D argued that it was imposed without the safeguards for freedom of speech
and the press required by the 1st Amendment to the US Constitution and the
NY Constitution
(b) P argued (1) Causes of action in libel are cognizable by the law of NY and
thus not contrary to public policy and (2) even if court is looking to the
judgment, rather than to the cause of action, NY should recognize the
judgment given the common antecedents of the law of Great Britain & NY
(5) English libel law: Any published statement that adversely affects a persons
reputation is prima facie defamatory. Ps burden is to establish that :
(a) The words complained-of refer to them
(b) They were published by the D; and
(c) They bear a defamatory meaning
(d) There is no distinction between private persons and public figures. None are
required to prove falsity of the libel or liable. None have to prove the media
D intentionally or negligently disregarded proper journalistic standards
(6) US libel law: Public figures have to surmount a much higher barrier to recover
damages from a media D. Even private figures (likely the case here) bear the
burden of showing
(a) Falsity, as well as
(b) Fault.
(c) Placing burden of proof on media Ds is unconstitutional because fear of
liability may deter such speech. NYs standard for liability in actions brought
by private persons against the press in a matter of public concern must
establish, by a preponderance of the evidence, that the publisher acted in a
grossly irresponsible manner
(7) Enforcing a judgment from abroad would have a chilling effect on media Ds in
violation of the US Constitution. P was not required to show that the media D was
at fault, thereby failing to meet US Constitutional standards and NY standards
ii) Hague Choice of Courts Convention
(1) Remnant of the aspired-to Convention on the Recognition & Enforcement of
Judgments
(2) Limited to
(a) business-to-business
(b) transnational contracts
(c) that include a forum-selection clause
(3) Court chosen by the parties in an exclusive choice-of-court agreement has
jurisdiction
(4) Other courts must decline to hear the case
(5) A judgment derived from the court with exclusive jurisdiction must be recognized
and enforced in the courts of other contracting States
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Bjorklund
(6) These obligations are subject to familiar exceptions, such as public policy; also
excludes punitive or exemplary damages judgments
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Spring 2008

predictability and uniformity of application. However, predictability as a goal

(i) CT: Rental co is liable by special statute

(ii) Matter of characterization-Issue characterized as one of procedure; e.g.

3. Violates some fundamental principle of justice, some prevalent

(1) Notion of respondeat superior-would employer be responsible for negligent acts

(c) Leflars better law

(1) Foster v. Leggett-Kentucky (forum) is location of P. D is employed there and also

chooses to go into that state, is voluntarily subjecting herself to that state.

competing (interfering) employers. By not allowing an employer to sue the

(a) Deciding if it is loss allocating or activity-deterring is difficult. 1 of the

(ii) CA-interest analysis and comparative impairment and

3) Constitutional Limitations on Choice of Law

Contacts (is it fair to apply particular states

Full Faith and Credit

b) Convergence (of Due Process and Full Faith & Credit)

3. Character of activity to be regulated; importance to regulating state

4) Choice of Law in the International Arena: European Cross-Border

5) Personal (Adjudicatory) Jurisdiction

(ii) Reasonableness (quid pro quo)

(i) More important for specific jurisdiction?

(c) Category-specific jurisdiction general in the sense that claims to be litigated

conclude that all assertions of state-court jx must be evaluated according to

Concerned with Defendants Contacts

Concerned with all Contacts

Post-Occurrence Events may be Relevant

f) Service of Process & Forum Selection Clauses in Transnational Controversies

6) Recognition & Enforcement of Judgments

$1750. SC ordered additional $50 a month in child support. F1 judgment said

Appeared but Did Not

Did Not Appear

If bound in F-1, bound Appearance in F-1

7) Recognition of Foreign Country Judgments

(a) Was served personally in the foreign state

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