Agenda for 19th Class
• Admin
– Handouts
– Name plates
– Office hours
• Today. Booked up with student appointments
• Email for appointment later this week or next week
– Court visit
• Tuesday, November 19, 1:20-4:30PM, but keep all afternoon clear
– Lunch.
• Thursday. Noon-1. Glassed-in side, as far from TV as possible
– A Civil Action panel – Thursday, November 21 at 7PM in WCC 2004
– Review class – Thursday, December 9, 1:10-3:10PM in WCC 2004
• Review of McIntyre and Burger King
• Jurisdiction & internet continued
• Venue and Erie
• Introduction to Choice of Law
1
Assignments I
• T. 11/19 (court visit)
– Info about Judge Stearns (on webpage)
– Papers in Plouffe 12(b)(6) motion (on webpage)
• Th 11/21 (A Civil Action panel)
– By Wednesday midnight, email dklerman@law.usc.edu at least one
question that you would like to ask Cheeseman, Facher, Nesson and/or
Schlichtmann
• Question should be about case and/or book
– Not about movie
• As moderator, I will call on you to ask questions
– You can ask the question you emailed to me
– Or you can ask a question that responds to prior comments by
panelists
2
Assignments II
• M 11/25 (regular class)
– Court visit
• In what way was court different than you expected?
• Do you have any questions about what you saw or heard?
– Erie (continued)
• Yeazell 251-55, 258-66
• Erie Questions on slide that follows next slide
• Optional. Glannon Ch. 11
– Choice of Law
• Choice of Law Handout
• Choice of Law Questions on slides which follow
• Optional. Glannon Ch. 12
3
Assignments III
• T 11/26
– Res Judicata
• US Constitution Article IV (Supplement p. 1)
• 28 USC 1738
• Yeazell pp. 715-27
• Yeazell p. 727 Q1
• Optional: Glannon Chapters 26 & 27
– Collateral Estoppel
• Yeazell 749-67
• Yeazell p. 750 Qs 1-3
• Yeazell p. 753 Q 2
• Yeazell p. 756 Qs 1-4
• Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b
• Optional. Glannon Chapters 28 and 29
4
Erie Questions
• Suppose West Dakota courts requires the complaint to be submitted
on 8.5”x14” paper, while the local rules of the federal court in the
district of West Dakota requires the complaint to be submitted on
8.5”x11” paper. Under the Erie doctrine as interpreted by Guaranty
Trust, what size paper should be used in diversity cases? Does your
answer depend on whether plaintiff filed the complaint in federal
court 1 minute before the statute of limitations expired?
• Suppose West Dakota has a summary judgment practice different
from the that which has governed in the federal courts since Celotex.
In West Dakota, a defendant may not prevail by pointing out that
plaintiff lacks evidence on an issue, but rather the defendant can only
prevail on summary judgment by presenting undisputed evidence on
every issue. If a diversity case is filed in federal district court in West
Dakota, what standard should apply if the defendant files a motion
for summary judgment? Is the answer and/or analysis different
under Guaranty Trust than under Hanna?
5
Choice of Law Questions I
• 1) Suppose Wes, a resident of West Dakota, gets into an
accident with East, a resident of East Dakota, on a highway in
West Dakota. Wes sues East in West Dakota state court alleging
per se negligence because East was driving 79 miles per hour.
No speed limit was posted. West Dakota law states that, unless
otherwise posted, the speed limit on a highway is 70 miles per
hour. East Dakota law, however, states that, unless otherwise
posted, the speed limit on a highway is 80 miles per hour.
Which state’s law applies to this dispute? Is your answer
different under the traditional lex loci commissi rule than under
the Restatement Second? If your answer is different, which rule
makes more sense?
• 2) Same as (1) except Wes sues in West Dakota federal district
court.
• 3) Same as (1) except Wes sues in East Dakota state court. 6
Choice of Law Questions II
• 4) Driver and Passenger are both domiciled in West Dakota. Driver
drives passenger to East Dakota. While in East Dakota, Driver talks on
his cell phone and causes an accident in which Passenger is injured.
Passenger sues Driver in West Dakota state court for negligence.
According to East Dakota law, passengers have no right to sue drivers
for injuries caused by negligence. According to West Dakota law,
passengers can sue drivers for negligence. Which state’s law applies
to this dispute? Is your answer different under the traditional lex loci
commissi rule than under the Restatement Second? If your answer is
different, which rule makes more sense?
• 5) Same as (4), except Passenger sues in West Dakota federal court.
• 6) Same as (4) except Passenger sues in East Dakota state court.
7
Choice of Law Questions III
• 7) Spend, a Nevada domiciliary, is completely irresponsible with money.
Fortunately, he recognizes this fact and has set up a spendthrift trust. Under the
terms of the trust, Spend cannot borrow money without the consent of Trustee, a
friend he trusts. Spend goes to California and borrows money there from Sharkey
to be repaid in one year at Sharkey’s place of business in California. When Spend
doesn’t repay the loan, Sharkey sues Spend in Nevada. Under Nevada law, loans to
someone who has set up a spendthrift trust are void. California law does not allow
people to set up spendthrift trusts, so under California law, such loans are
enforceable. The traditional rule for contracts was the law of the place the
contract was formed governs disputes about contract validity. Under the
traditional rule, what state’s law would apply? Under the Restatement Second,
which state’s law should apply to the dispute? If the traditional rule and
Restatement Second suggest different answers, which makes more sense?
• 8) Same as (7), except Sharkey sues in California state court.
• 9) Same as (8), except Sharkey traveled to Nevada, loaned Spend the money there,
with repayment to be made to Sharkey when he returns to Nevada a year later.
8
Choice of Law Questions IV
• 10) Same as (7), except the loan contract includes the following clause: “This
contract shall be governed by California law.” The traditional rule was not to
enforce choice of law clauses. See also Restatement (Second) below
• § 187. Law Of The State Chosen By The Parties
• (1) 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.
• (2) 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
– (a) the chosen state has no substantial relationship to the parties or the
transaction and there is no other reasonable basis for the parties' choice, or
– (b) application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater interest than the
chosen state in the determination of the particular issue and which, under the
rule of § 188, would be the state of the applicable law in the absence of an
effective choice of law by the parties.
9
Choice of Law Questions V
• Plaintiff in Phillips brought the case in federal district court in Montana. Why is
there a decision of the Supreme Court of Montana?
• In Phillips, the Montana Supreme Court observes that “applying the law of the
place of manufacture would be unfair because it would tend to leave victims under
compensated as states wishing to attract and hold manufacturing companies would
raise the threshold of liability and reduce compensation…. [A state with a high
concentration of manufacturing] could enjoy all the benefits associated with
liability laws which favored manufacturers in order to attract and retain
manufacturing firms and encourage business within its borders while placing the
costs of its legislative decision, in the form of less tort compensation, on the
shoulders of nonresidents injured by its manufacturers’ products.” (p. 249).
– Suppose Montana has a relatively low concentration of manufacturing. Would
its citizens benefit by laws which raised the threshold of liability and reduced
compensation? Or would its citizens benefit by laws which lowered the
threshold of liability and increased compensation? If it lowered the threshold
of liability and increased compensation, who would bear the increase in costs?
What does this suggest about the fairness of applying Montana law?
10
Choice of Law Questions VI
• In Phillips, the Montana Supreme Court asserted that “we do not believe that the
purpose of any potentially applicable Michigan product liability law would be to
regulate the design and manufacture of products within its borders. The purpose
of product liability law is to regulate interstate sales or sales to residents and to set
the level of compensation when residents are injured. ” (p. 249)
– If the plaintiffs in Phillips had filed the case in Michigan state court, do you
think Michigan state judges would have agreed that its laws are inapplicable?
What purpose might a Michigan judge ascribe to product liability law to show
that Michigan law should apply?
• If you were a judge on the Montana Supreme Court, would you have retained the
traditional lex loci commissi rule, or would you have voted (like the actual Montana
Supreme Court) to adopt the Restatement (Second) most significant relationship
approach? Why?
11
Court Visit Info I
• No cell phones or laptops
• Dress
– Marsha Zierk (Career Law Clerk): “Judge Stearns expects formality in the
courtroom -- so jackets are not necessary, but jeans don't work either. I
think a shirt and tie is great -- especially if they plan on filing clerkship
applications! -- but otherwise, business casual.”
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Court Visit Info II
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12:30. I will leave my office, Griswold 206
– If you want to take the T together, please meet me at my office
1:20 or earlier. Arrive at courthouse, go through security
– Courthouse Way, Boston MA
– 12 minute walk from South Station stop on Red Line
1:40. Meet with Marsha Zierk, Career Law Clerk
– Courtroom 21 on 7th Floor
– Runs civil side of courtroom; manages docket. manages law clerk and intern
assignments; involved in hiring interns & law clerks
2:00. Pigniaro v Standard Insurance
– Summary judgment motion in ERISA case
– Papers sealed, so cannot distribute
3:00. US v Noe & Baker
– Request for return of property seized as part of arrest
– Pro se litigant
– Papers on class webpage
3:30. Plouffe v Dighton
– 12(b)(6) motion in gun rights case
– Papers on class webpage
Discussion with Judge Stearns and law clerks between hearings or after 3:30PM hearing
13
Exam
• 8 hour take home
– Open book
– Designed not to be time pressured
• 8 old exams and model answers posted to class webpage
– Wait at least one week to do
– Remember
• Law has changed
• Course coverage has changed
• You will have more time
• Model Answer to 1995 Q1 posted to iSites
– HoGo work ok?
• How to study
– Make your own outline
– Glannon
– Old exams, especially 2000 (includes multiple choice) and 2001 & 2002
– Most people spend too much time outlining, not enough time on Glannon and
old exams
• Day before exam (12/15) do 3 old exams (2-3 hours each) & rigorously
compare your answer to model answers.
• Write exams independently, but discuss answers with study group
14
– Sleep well, eat well, get some exercise
Review of Last Class I
– McIntyre
• Court continues to be divided on Stream of Commerce
• Kennedy + 3.
– Defendant must “target” the jurisdiction
– Putting product in stream of commerce not enough to show
purposeful availment
• Ginsburg + 2
– Establishing distribution network to serve whole US sufficient to
show purposeful availment of particular U.S. states
• Breyer
– This case is anomalous.
– No jurisdiction, because only a few of McIntyre’s machines were
sold to NJ
– Seems also to endorse narrow view of O’Connor’s Stream of
Commerce Plus approach
• No majority opinion
15
Review of Last Class II
– Burger King
– Suppose A is from AL and C is from CA and suppose A
and C enter into a contract with each other
– Broad interpretation of Burger King:
• If A sues C or C sues A, then both AL and CA always
have jurisdiction over the case
– Narrow interpretation of Burger King
• If A sues C, then AL has jurisdiction over the case only
if:
–the contract was part of a continuing commercial
relationship between A and C, and/or
–the defendant was sophisticated
• Similar analysis if C sues A in CA
16
Review of Last Class III
• Jurisdiction and Internet
– Zippo
• Jurisdiction depends on how active the website was
• Note that Zippo was only district court decision
• Unclear theoretical basis
– Why should defamation be less likely to establish jurisdiction
where viewed if posting was by website owner on passive
website than if posting was by 3rd party on interactive website?
– Revell
• No jurisdiction in state X simply because website defamed victim
residing in state X
• Must also show events discussed and/or readership were in victim’s
state
– Tries to narrow Calder “effects test”
– Handout Problems 2-18 & 2-19
17
Venue: 28 USC 1391
• (b)(1). If all defendants reside in the same state, venue is proper in any judicial
district in which at least one defendant resides
– For individuals residing in US, residence = domicile. (c)(1)
• Confusing, because domicile is usually defined as residence + intent to
remain indefinitely
– Corporations are resident in any district in which they would be subject to
personal jurisdiction, if district were considered a state. (d)
• If reside in district, then reside in state in which district located
• (b)(2). Venue is proper in judicial district where event or omission giving rise to
claim occurred
• (b)(3). If no district satisfies (b)(1) or (b)(2), then venue is proper in any district in
which in which any defendant is subject to personal jurisdiction.
• (c)(3). Defendant not residing in US can be sued in any district
– Joinder of person not residing in US disregarded in determining venue when
multiple defendants
• IMPORTANT. Even if venue is proper, court still needs to have personal jurisdiction
over EACH AND EVERY defendant.
18
Venue Questions
– Yeazell Pp. 175ff. Qs 1,2,4a,b,d (ignore the reference to 28 USC
1392)
– Briefly Summarize Dee-K Enterprises
– Yeazell P. 176 Q5; pp. 178ff Q1a, 2
19
Moving Cases Around
• From one federal court to another
– 28 USC 1404 says cases may be transferred “to any other district .. where it
might have been brought” “for the convenience of the parties and witnesses, in
the interest of justice.” Even if venue was proper in the first place
– 28 USC 1406 says that court can transfer case if venue was improper in the first
place.
• Without statute, one might think that the court didn’t have power to do
anything
• No comparable ability to transfer case between judicial systems
– E.g. from one state court to a court in a different state or foreign country
– E.g. from federal court to court in foreign country
– If judge thinks that her court has jurisdiction, but that a court in a different
state or country would be better, the judge must dismiss the case
• Forum non conveniens
• No transfer or forum non-conveniens to move case from federal to state court or
vice versa
– State to federal court. Removal
– Federal to state. Abstention.
20
Forum Non Conveniens Questions
• Briefly summarize Piper Aircraft
– In your summary, please incorporate answers to pp. 186ff
Qs1, 4,
• Suppose a chemical plant in India owned by an
American company leaks gas into the surrounding
neighborhood and kills 16,000 people and injures half a
million. The victims sue in US court. Defendants move
for dismissal on the basis of forum non conveniens.
The plaintiffs argue that dismissal is inappropriate,
because Indian courts require a filing fee equal to 5% of
damages claimed, which in this case could be billions of
dollars. There are long delays in Indian courts. Indian
courts have very few tort precedents and none relevant
to mass torts. Discovery is usually very narrow, if
allowed at all. Should the court grant the forum non
conveniens motion? If it does, are there any conditions
it should attach?
21
Erie Questions
• Briefly summarize Erie
• Yeazell p. 248. Q1b
22
Introduction to Choice of Law
• Courts do not always apply their own law
– Federal courts apply state law in diversity cases
– State courts apply federal law when required by the Supremacy Clause
– Sometimes one state court applies the law of another state
• If MA citizen gets into accident in CA and is sued in MA, MA court is likely to
apply MA traffic law
• If NY citizen and UK citizen get married in UK and then move to NY, UK law
may govern validity of marriage
• Choice of law (a.k.a. conflict of law) answers the question “whose law applies?”
– MA or CA law
– US or UK law
– Choice between federal or state law is not usually considered choice of law
question
• Rather Erie, Supremacy Clause, or preemption question
• Major change in 20th century
– Traditional rules. Rigid, territorial
– Modern rules. Evaluations of interests of relevant states
• Restatement 2nd
• Federal courts apply choice of law rules of state where sitting (Klaxon)
23
– Like personal jurisdiction and 4(k)(1)(A)