CONFLICTS OF LAW
Professor Susan D. Franck
Fall 2014
I.
COURSE DESCRIPTION
This class examines situations where the statutes, cases and interests of multiple
jurisdictions come together in one single judicial forum and create a conflict. This
course will explore three major areas where these conflicts arise. First, the course
will address choice of law and the rules courts use to determine which jurisdiction’s
laws apply to a given issue (i.e., cases where the laws of two or more jurisdictions
are involved but the application of a different law could lead to a different result).
Second, the course considers when courts have jurisdiction to hear a case, when
courts can decline jurisdiction, when courts must take jurisdiction and other due
process considerations. Finally, the course explores the enforcement of judgments
and how and when “foreign” judgments will be recognized in the United States and
what effect a U.S. judgement may have abroad.
II.
COURSE OBJECTIVES
The objectives of this course are to:
1. Develop the student’s appreciation of the nature of inter-jurisdictional issues that
may arise in private litigation;
2. Acquaint the student with several specific areas of conflict of laws and to develop
an ability to explore areas not specifically covered in the course;
3. Cultivate a critical appreciation of the historical development of conflict of law
rules, the policy decisions inherent in conflict of law rules and the potential need
for reform; and
4. Foster the student’s ability to identify conflict of law issues and to make strategic
recommendations to clients related to choice of law, jurisdictional considerations
and enforcement of judgments.
III.
COURSE INFORMATION
Methodology:
This class will examine some of the leading conflicts of law cases, relevant statutory
provisions, international instruments and excerpts from scholarly writings. When
appropriate, references will be made to approaches of other legal systems to provide
comparative insights. This syllabus and assignment sheets, which may contain
revisions to this syllabus, contain the material for which students are responsible.
This course uses The West Educational Network (TWEN), available at
http://lawschool.westlaw.com, as a learning portal. The password is: renvoi. The
syllabus, assignment sheets containing questions to be prepared before class,
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PowerPoint presentations and other relevant materials will be available on TWEN. I
encourage the use of the “Discussion” feature to address issues raised in class in
further detail.
Required Materials:
Herma H. Kay, Larry Kramer & Kermit Roosevelt, Conflict of Laws, Cases,
Comments, Questions (9th ed. 2013) [hereinafter Casebook or CB]. The ISBN
number is: 978–0–314–28144–9. Supplementary materials may be distributed
during the course.
Recommended Materials:
Please refer to the list of materials referred to in “Conflicts References and Additional
Background Reading” in Section VI of this syllabus for a list of useful conflicts
references. Previous conflicts students have found the Richman & Reynolds
study-aid, Understanding Conflict of Laws, to be useful. I have also listed a
variety of interesting links to materials on TWEN under “Web Links”.
Class Hours and Attendance:
Classes will be held on Mondays, Tuesdays and Wednesdays from 9:00 am – 9:55
in D. Class attendance is required by the law school’s policies, as well as my own.
See http://catalog.wlu.edu/preview_program.php?catoid=6&poid=209#Attendance.
Three unexcused absences are allowed. Absences beyond this standard are only
permitted with the permission of the instructor in the case of an emergency and with
appropriate documentation. The instructor reserves the right to drop students
who fail to attend regularly or to give them a failing grade.
Conflicts of Law is an engaging and rigorous subject that gradually builds on itself,
and I presume that students will prepare for each class. Students who are
unprepared should notify me prior to the start of class.
Audio or Video Recordings:
Students may not make an audio or video recording of a class without receipt of
written permission from the instructor in advance of the class.
Given the challenging subject matter of the course, the instructor will have audio
recordings made of each class. These recordings will be available through a
password protected web portal. Students may only use such recording only for class
purposes. Students are prohibited from distributing the recording and must destroy
any recording at the conclusion of the course.
Use of Technology:
The use of phones, pagers or similar electronic devices (such as Androids,
Blackberries, iPhones, iPad, iTouch, etc) in class is prohibited. Any of these devices
must be turned off before you enter the classroom.
Computers may be used in class only for purposes directly related to the class.
Game playing, tweeting, Skyping, surfing the internet, instant messaging, reading or
sending email, or doing any work not related to this class is prohibited.
Unauthorized use may result in loss of privilege to use all laptops for everyone
in the entire class.
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Grading:
Grading will be based upon a Final Exam and relevant class participation. It is my
policy to note which students make regular and meaningful contributions to class
discussions. Subject to the mandatory W&L curve, I reserve the right to raise a
grade by one half-letter (i.e., B to B+) in the event of regular and useful contributions
in class or another suitable electronic medium, such as discussions on Westlaw.
Final Exam:
The final examination in this class will be a four-hour, modified open-book, essay
exam. Further and particularized instructions about the format, location, timing and
permitted materials will be available later in the semester.
Contact Details:
I am available in my office in Room 486. Subject to needs to prepare for class and
attend other meetings, I am typically available during Mondays through
Wednesdays. I can also create special times to meet with appropriate notice. To
maximize the value of your time and meet your needs more effectively, I encourage
all students to set up advance appointments so I am prepared to meet with you. My
email address is francks@wlu.edu.
IV.
ASSIGNMENTS
Topic
Topic 1
Issues Covered
Introduction
Topic 2
First Restatement: Torts
Topic 3
First Restatement: Contracts
Topic 4
First Restatement: Property
Topic 5
Domicile
Topic 6
Characterization
Topic 7
Substance v. Procedure
Topic 8
Topic 9
Statutes of
Problems
Renvoi
Topic 10
Public Policy
Topic 11
Statutory Solutions
Topic 12
Borrowing Statutes
Limitations
and
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Required Preparation
Assignment Sheet;
Casebook pages 3-7
Assignment Sheet;
Casebook pages 7-19
Assignment Sheet;
Casebook pages 20-28
Assignment Sheet;
Casebook pages 28-33
Assignment Sheet;
Casebook pages 34-43
Assignment Sheet;
Casebook pages 43-53
Assignment Sheet;
Casebook pages 53-60
Other Assignment Sheet;
Casebook pages 60-66
Assignment Sheet;
Casebook pages 66-76
Assignment Sheet;
Casebook pages 76-91
Assignment Sheet;
Casebook pages 99-105
Assignment Sheet;
Casebook pages 102-05
Topic
Topic 13
Issues Covered
Party Autonomy
Topic 14
Second Restatement
Topic 15
Topic 16
Interest Analysis: Introduction, False
Conflicts, and New York’s Approach
True Conflicts
Topic 17
Moderate and Restrained Analysis
Topic 18
Comparative Impairment
Topic 19
Leflar’s
Choice
Considerations
Topic 20
Variations
Approach
Topic 21
Constitutional limits on choice of law:
Due process and full faith and credit
Topic 22
Personal Jurisdiction and Choice of
Law
Topic 23
The Obligation to Provide a Forum –
The Power to Keep Litigation at Home
Recognition of Judgments: Introduction
and Foreclosure of Jurisdiction Issues
Topic 24
Topic 25
Topic 26
on
Leflar:
Influencing
Minnesota’s
Inconsistent Judgments and
Judgments Involving Land
Equitable & Non-Final Decrees;
Statutes of Limitation; Recognition of
Foreign Country Judgments
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Required Preparation
Assignment Sheet;
Casebook pages 108-120
Assignment Sheet;
Casebook pages 223-49
Assignment Sheet;
Casebook pages 134-69
Assignment Sheet;
Casebook pages 175-84,
188
Assignment Sheet;
Casebook pages 185-89
Assignment Sheet;
Casebook pages 289-206
Assignment Sheet;
Casebook pages 249-56,
261-66
Assignment Sheet;
Jepson v. General Casualty
Company of Wisconsin and
In re Levaquin Products
Liability Litigation (citations in
Assignment Sheet 5)
Assignment Sheet;
Casebook pages 364-84 and
Sun Oil v. Wortman (citation
in Assignment Sheet 6)
Assignment Sheet;
Casebook pages 451-62,
494-509
Assignment Sheet;
Casebook pages 385-96
Assignment Sheet;
Casebook pages 519-40,
551-59
Assignment Sheet;
Casebook pages 559-70
Assignment Sheet;
Casebook pages 574-96,
1019-32
V.
OUTLINE OF CONFLICTS OF LAW
1.
Choice of Law Methods
a.
The First Restatement
i.
Jurisdiction-Selecting Rules
(1)
(2)
(3)
(4)
ii.
Torts
Contracts
Real Property
Matters Controlled by Domicile
Escape Devices
(1)
(2)
(3)
(4)
Characterization within Substantive Categories
Substance-Procedure Distinction
Renvoi
Public Policy
b.
Second Restatement
c.
Interest Analysis
d.
Choice-Influencing Considerations
e.
Alternatives to Judicial Determination of Choice of Law
i.
ii.
iii.
Statutory Choice of Law
Common Law
Choice of Law by Contract
2.
Constitutional Limits on Choice of Law
3.
Constitutional Obligation to Provide a Forum
4.
Personal Jurisdiction
5.
Recognition of Judgments
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VI.
CONFLICTS REFERENCES AND ADDITIONAL BACKGROUND READING
American Law Institute, Restatement, Conflict of Laws (1934).
American Law Institute, Restatement, Second, Conflict of Laws (1971). (The
annotations provide an excellent means of locating choice of law cases, especially
on issues on which state approaches are generally similar, such as family law,
contractual choice of law provisions and corporations.)
Association of American Law Schools, Selected Readings on Conflict of Laws
(1956).
Brand, Ronald A., Editor, Enforcing Foreign Judgments in the United States and
United States Judgments Abroad, American Bar Association, Section of
International Law and Practice (1992). (An invaluable state-by-state and country-bycountry compilation of standards and procedures for the enforcement of foreign
country judgments.)
Borchers, Patrick J., The Choice of Law Revolution: An Empirical Study, 49
Washington & Lee Law Review 357 (1992). (An empirical study of tort cases
seeking to measure the extent to which variations in choice of law methods produce
differences in outcome.)
Brilmayer, Lea, Conflict of Laws: Foundations and Future Directions (1991).
Casad, Robert C., Jurisdiction and Forum Selection (2d ed. 1999) (A looseleaf
guide, updated annually, with information helpful in selecting a forum, including
state-specific information on jurisdictional statutes, statutes of limitation and choice
of law.)
Cavers, David F., The Choice of Law Process (1965).
Cook, Walter Wheeler, The Logical and Legal Bases of the Conflict of Law
(1949).
Cooper, Laura, Statutes of Limitation in Minnesota Choice of Law: The Problematic
Return of the Substance-Procedure Distinction, 71 Minnesota Law Review 363
(1986).
Currie, Brainerd, Selected Essays on the Conflict of Laws (1963).
Dammann. Jens, A New Approach To Corporate Choice of Law, 38 Vanderbilt
Journal of Transnational Law 51 (2005).
Dicey, Albert V, John H.C. Morris & Lawrence Collins, Dicey & Morris: The Conflict
of Laws (14th ed. 2009) (This is a useful comparative treatise as it explains conflicts
issues from the English and European perspectives.)
Ehrenzweig, Albert A., Treatise on the Conflict of Laws (1962).
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Kay, Herma Hill, Theory into Practice: Choice of Law in the Courts, 34 Mercer Law
Review 521 (1983). (A good overview of the variety of choice of law methods used
today in the United States and how the states apply them.)
Juenger, Friedrich K., Choice of Law and Multistate Justice (1993).
Leflar, Robert A.; Luther L. McDougal, III & Robert L. Felix, American Conflicts Law
(5th ed. 2001).
Marshall, Stephanie K., Caroll, William Franck & George, James P., Conflict of Laws,
62 SMU Law Review 1021 (2009).
Martin, James A., Perspectives on Conflict of Laws: Choice of Law (1980).
O’Hara, Erin A., Economics, Public Choice, and the Perennial Conflict of Laws, 90
Georgetown Law Journal 941 (2002).
O’Hara, Erin A. & Ribstein, Larry E., From Politics to Efficiency in Choice of Law, 67
University of Chicago Law Review 1151 (2000).
O’Hara, Erin A. & Ribstein, Larry E., Preemption and Choice-of-Law Coordination,
111 Michigan Law Review 647 (2010).
Rendleman, Doug., McMillan v. McMillian: Choice of Law in a Sinkhole, 67 Virginia
Law Review 315 (1981).
Richman, William M., Understanding Personal Jurisdiction, 25 Arizona Law Journal
599 (1993). (A comprehensive overview of the law of personal jurisdiction.)
Richman, William M. & William L. Reynolds, Understanding Conflict of Laws (3d
ed. 2002).
Robert A. Leflar Symposium on Conflict of Laws, 52 Arkansas Law Review 1
(1999) (Includes seven articles reflecting on the "better law" approach to choice of
law of Professor Robert A. Leflar.)
Roosevelt, Kermit III., The Myth of Choice of Law: Rethinking Conflicts, 97 Michigan
Law Review 2448 (1999).
Scoles, Eugene F., Peter Hay, Patrick J. Borchers & Symeon C. Symeonides,
Conflict of Laws (5th ed. 2010). (In the West Group Hornbook Series.)
Shreve, Gene R., A Conflict-of-Laws Anthology (1997). (An edited collection of
relatively brief excerpts of scholarly literature covering all aspects of conflicts;
includes an extensive bibliography organized by author and subject matter.)
Siegel, David D. & Borchers, Patrick J., Conflicts in a Nutshell (2005).
Smith, Gregory E., Choice of Law in the United States, 38 Hastings Law Journal
1041 (1987). (A possible starting place for identifying a particular state's choice of
law cases and approach.)
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Sterk, Stewart E., Personal Jurisdiction and Choice of Law, 98 Iowa Law Review
1163 (2013).
Symeonides, Symeon C., Result-Selectivisim in Conflicts Law, 46 Williamette Law
Review 1 (2009).
Symeonides, Symeon C., Choice of Law in the American Courts in 2012: TwentySeventh Annual Survey, 62 American Journal of Comparative Law 1 (2014). (The
Conflicts Section of the Association of American Law Schools has, since 1987,
published in the American Journal of Comparative Law an annual comprehensive
essay reviewing the year's developments in choice of law. Past essays are cited in a
footnote in the current essay. The surveys since 1993 also can be obtained online
under the “Journals” heading by searching on at http://www.comparativelaw.org/ .
Symposium: Enforcing Judgments Abroad: The Global Challenge. 24 Brooklyn
Journal of International Law 1 (1998).
Symposium on Conflict of Laws, Celebrating the 30th Anniversary of Babcock v.
Jackson, 56 Albany Law Review 693 (1993).
Symposium: Preparing for the Next Century – A New Restatement of Conflicts? 75
Indiana Law Journal 399 (2000).
Symposium: The Silver Anniversary of the Second Conflicts Restatement, 56
Maryland Law Review 1193 (1997).
Symposium: Transatlantic Business Transactions – Choice of Law, Jurisdiction, and
Judgments, 26 Houston Journal of International Law 245 (2004).
Von Mehren, Arthur Taylor & Donald Theodore Trautman, The Law of Multi-State
Problems (1965).
Whytock, Christopher A., Myth or Mess? International Choice of Law in Action, 84
New York University Law Review 719 (2009)
Weintraub, Russell J., Commentary on the Conflict of Laws (6th ed. 2010).
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VII.
NATIONAL DIVERSITY OF CHOICE OF LAW METHODS
From: Symeon C. Symeonides, Choice of Law in the American Courts in 2012:
Twenty-Six Annual Survey, 61 American Journal of Comparative Law 1 (2013),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2200141 (based on
a review of the law of 52 jurisdictions – the 50 states plus the District of Columbia
and Puerto Rico). The 2012 survey indicates that there were no changes in courts’
application of conflicts methodology. Rather state supreme courts have reaffirmed
their existing approaches.
Some of the most recent changes occurred in 2007 whereby: (1) New Jersey
abandoned interest analysis in favor of Second Restatement analysis for torts, and
(2) New Mexico adopted a Second Restatement “false conflict” analysis for
contracts. Symeon C. Symeonides, Choice of Law in the American Courts in 2007:
Twenty-First Annual Survey, 56 AMERICAN JOURNAL OF COMPARATIVE LAW 243, 246 n.
5 (2008). No more than 37 jurisdictions use the same method for both torts and
contracts.
First
Restatement
Significant
Contacts
Second
Restatement
Interest
Analysis
Lex
Fori
Leflar
Combined
Modern
Torts
10
3
24
2
2
5
6
Contracts
12
5
23
0
0
2
10
Some Patterns in Individual States
State
Contracts
Torts
Minnesota and Wisconsin
Leflar
Leflar
Tennessee and Florida
First Restatement
Second Restatement
West Virginia and North Second Restatement
Carolina
First Restatement
Iowa (and 18 other states)
Second Restatement
Second Restatement
Kentucky
Second Restatement
Lex Fori
New Hampshire
Second Restatement
Leflar
Washington, D.C.
Combined Modern
Interest Analysis
Note: This survey considered choice of law issues in torts and those issues in
contracts not controlled by a contractual choice of law clause. With regard to choice
of law clauses, regardless of the choice of law method a state uses for other contract
issues, a state will generally follow the Second Restatement’s approach to the
enforcement of such clauses. In the area of real property, regardless of the method
a state follows in other substantive areas, it is likely to follow a method that gives
controlling significance, in most real property issues, to the location of the land.
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