CONFLICTS OF LAW SPRING 2014
1. Traditional Approach/First Restatement
TOPIC
CONTENTS
Overview:
 History:
1. Territorial Approach: It is concerned with the location of specific acts or the lex loci
2. Story, J: Emphasized that every state possessed and exclusive sovereignty and
jurisdiction within its territory.
3. Beale: Proposed that certain rights were “vested” in the territory which they took
place and were later valid and enforceable everywhere
4. The First Restatement:
a. Approach:
i. Places a high value on uniformity of result
ii. Predictability
iii. Discouragement of forum shopping
b. Disadvantages:
i. Can be too rigid and mechanical and can lead to unjust results
 Rule:
1. In determining what law to apply, look to the law of the state where the right was
acquired as in a K or where the last event necessary to make an actor liable for an
alleged tort takes place.
First
 The Law Where the Tort Occurred Controls:
Restatement
1. First Restatement, 384: The substantive law of the state where the act fiving rise to
Torts
the a claim occurred, determines tort liability. Carroll
2. The last act rule: The place of the injury governs even if the negligence occurred and
domiciles of the parties is else where, i.e., the place of the wrong in the sate where the
last event necessary to make an actor liable for an alleged tort takes place.
3. Exceptions:
a. If the law of the place of wrong depends on the application of a standard of
care that standard should be taken from the law of the place of the actors
conduct. 380
b. If a person required or forbidden to act under the law of the place of acting
should not be held liable for consequences in another state, 382.
 Policy behind rule:
1. Encourage predictability: However, it is hard to use this rationale b/c accidents are
not predictable.
First
 Assumptions that are made when viewing choice of law and contracts:
Restatement
1. Assumptions are made about validity and performance:
Contracts
a. Courts assume that validity and performance may be distinguished
b. That these both occurred in separate places
c. This encourages preemptive forums shopping for where to pick your place of
contracting
d. This system is only predictable if there are attorneys and judges who agree on
the facts which is unrealistic.
 Validity determined by the state in which the contract is made:
1. Things considered to concern validity: Law of the place of the K determines the
capacity to K, form of promise, mutual assent, consideration, requirements to make a
K, what makes a K void/ voidable, time and place to be performed.
2. Beale: Law of the place where the principle even necessary to make the K is binding.
3. The First Restatement:
a. To determine the laws of the validity of the K, forum looks to state where
1
First
Restatement
and
Land/Wills
K was made: The law of the state where made governs validity. (First RST,
311 and Millikan).
4. Validity of different types of contract:
a. Formal K effective: If on final delivery, where the delivery is made (312)
b. Informal Bilateral K:
i. Where second promise is made in consideration of first promise(325)
ii. Place of contracting is where accepted: where agent delivers or, if sent
by mail, place where acceptance is sent from (326)
iii. If accepted by mail: place of contracting is where the acceptance is
mailed
iv. If accepted by telegraph: place where the message of acceptance is
received by telegraph company for transmission
v. If by phone: place where the acceptor speaks his acceptance.
c. Informal Unilateral K: Where event takes place which makes the promise
binding (323)
5. Example of application:
a. Milliken v. Pratt:
i. FContract signed in OR, but mailed to Maine by a married woman
who could not contract under Mass law, but could in Maine.
ii. HK created in Maine, when women could K, so that law applies
even though couldn’t K in mass then—should recognize expansions
of woman’s rights (P Wins).
iii. Vested Rights: Party rights vest at the moment the contract is made not
completed when signed, but when goods delivered in reliance one the
guarantee (unilaterial K)
iv. Reasoning: K was complete when guarantee was received and acted
on in OR—so treated contract as if made and performed in Maine
v. Notes The change in law does not matter because the right vested
in Maine.
 Performance—Apply the law of the place of the performance:
1. Place of the performance: Duty will be discharged by compliance with the law of the
place of performance of promise with respect to manner, time, locality, sufficiency,
and excuse for non performance (332)
2. Law of the place of performance controls if: Applying law of contracting requires
determination of minute details of manner, method and time and sufficiency of
performance, and is unreasonable.
3. Example of application:
a. Pritchard v. Norton: K was invalid in place of agreement, but valid in place
of performance. Courts assumed they intended to make K valid so used law of
the place of performance(validation theory).
 The First RST and Land—Usually the law of where the land is located governs:
1. Governing Principles:
a. Overall premise: Based on the premise that no state can affect property out of its
own territory. A state can prohibit operation of foreign laws with in its territory or
allow some but not others
b. Lord Barron: If personal property is disposed of lawful under the law of the
country where it is, that disposition is binding everywhere
c. Land Taboo Rationale: (1)Power: Official of state A are the only ones who can
lawfully deal with land in that state, (2) Priority: Not a good alternative that
would trust the homes a state’s interest in the land, (3) Organization: want to
keep searches of land ownership within the law of the situs to apply to have
2
uniformity in searches.
i. The majority rule: leaseholders are considered to be immovable property
Property
First
restatement
and
Domicile
 Wills:
1. In Barrie’s Estate:
a. FDeceased executed a will leaving land in Iowa to a church in Ill, but will
marked “void,” (improper revocation of Illinois, ok in Iowa), so under intestacy
lwas of Illinois, property yin that stated distributed to heirs, but under laws of
Iowa it goes to church.
i. Iowa courts can interpret a non-residents will who dies owning real
property in Iowa, but because the will was revoked in Ill does not mean it
is revoked in Iowa.
b. Rule(Beale): Law of the place the immovable is located governs the revocation
of a will and the capacity/ of the testator and the effect of the will.
i. Statute proffered by heirs is inapplicable because deals with creation of
will, not revocation
 Certain land is treated as if immovable property and situs usually governs:
1. Certain land is treated as immovable for conflict of law purpose such as: The most
notable are lease holds
2. Situs usually governs for: immovable property, creation of original title, the validity and
effect of a subsequent transfer, creation of encumbrances or subsidiary interests, and the
legal effect of such events as marriage or death.
3. Policy reasons for situs to apply:
a. (1) the land and attachment are in the exclusive controls of the state and they
officials of the state are the only ones that can actually deal with the physical
property.
b. (2) immovable are of the greatest concern to the state in which they are situated,
c. (3) the demands of certainty and convenience.
 Exceptions to the situs rule:
1. Succession of movables: decedents domicile
2. Rights of spouse in another’s movable: determined by domically rather than situs
3. Beale on policy behind these exceptions: The situs state always has power to apply its
own law but that it deferred to the state of domicile on matters of secession and
material rights so that the entire estate could be distributed as a unit.
 The elements to determine domicile under the First RST is (1) physical presence and (2)
intent to remain:
1. Intent to remain: Home/car ownership, registration, voting church or community
membership (normally an issue of fact for the jury), intent to remain “for a time at
least test”
a. Temporary absence does not destroy: changes only when you establish a
new domicile b/c you can only have 1 domicile
b. Last until new one formed: Continual until new one is found
c. If abandoned: It only takes day for a new one to established
2. Totality of circumstances: provides leeway and erodes any bright line rules.
3. Variations of domicile rule:
a. Domicile for spouses: Can have two separate domiciles if there is a
separation
b. Have intention to live in new place but never make it to inhabit it (16 cmt.
(a) 2nd RST): Presence is necessary, and statements that a moment’s presence
is enough should not be taken literally. Will not be enough to be domicile
unless they are there for a time at least(gives a ton of discretion).
i. One day is usually enough.
3
Escape
Devices—
Tort vs.
Contract
ii. But presence with a definite interest may be enough.
c. Send wife b/f reaching the place:
i. First RST: Would not change domicile unless husband reaches place
ii. Second RST: would change place and serve a substitute
iii. But Maricopa County: Have to touch it yourself, but in some
situations it could change
d. Died in hotel in new state that intended to live with out finding a home:
i. May establish new domicile: Establishes a new domicile. Winans .
ii. Cross state boarder, but do not reach property: There is presence in the
new state even though does not actually reach the house. Ok even
though the exact address is unknown, domicile refers to state, but not
exact house
e. Home is straddled btw the borders of two states:
i. Location of entrance: The location of the entrance to the dwelling
would determine the domicile. (RST 25)
ii. Where person sleeps: Where the person sleeps determine the domicile
f. If person is moved somewhere against their will, e.g., prison or military:
i. Cannot if by compulsion: Cannot acquire a domicile of choice by any
act done under legal or physical compulsion. (1st RST)
ii. Typically does not: A person does not usually acquire a domicile of
choice by his presence in a place under physical or legal
compulsion.(2nd RST)
iii. Should not be precluded from showing new domicile: Someone who is
forced to move should not be precluded form showing that he has
developed a domicile in the place which he was forced to move to.
Stifel.
4. White v. Tennant:
a. FLeft home in WV, intended to move to PA farm, moved stuff to new
house, got sick died I WV, no will so intestate there?
b. H Deceased domiciled in PA at death. He left WV with the intention and
purpose of making a home in PA—left his home without intent of returning
(PA Law)
c. Rule Law of decadents domicile state at the time of death controls the
distributions of his estate
5. Policy behind domicile rules: A man may go to many different states during his
lifetime. Yet it is desirable that someone of his legal internets should at all times be
determined by a single law…particularly matters where continuity of application of
the same law is important as family and decedents estate. First RST (11)
 Overview of escape devices:
1. Policy reasons for escape devices: The traditional rules were though of as being rigied,
and the severity of the rules led to exceptions. Because the interest argument was not
available during the Fist RST/traditional approach jurisprudence judges began employing
certain escape devices to address the critiqued arbitrariness in applying the first RST. All
of the escape devices have equal application, and judge have discretion t apply them how
they like.
 Characterization of the case:
1. What is characterization: The first RST puts a premium on characterization of the issue.
a. Serves a policy function: As a remedy of the overly rigid results of the
traditional rules, judges used characterization of an issue as a rationalizing decide
to decide whose law to apply.
b. Can be used as a tool for counsel: How an issue is characterized could be used
4
as a method for counsel to get a favorable law.
c. Criticism: It is very flimsy in its application
2. Method of characterizing an issue:
a. (1) How law is characterized by legislature: Did statute use SOL for K or for
tort?
b. (2)Look at statute’s purpose: If the law where the parties act does not give legal
validity to their acts---no other law should validate.
c. (3) Look at policy/justice: Is there sufficient interest in case to apply x law?
d. (4) Judicial activism/ “just” result: Some judges are less willing to imply terms
into a contract, so it’s a judicial deference decision? Or judges want the morally
just thing to be done so they puck the law that best suits the most rational
decision.
 Tort v. Contract:
1. The role of converting from a contract to a tort: Can escape the old territorial rules by
characterizing the issue whether and it can give or strip the ability of a party to be able to
bring suite.
a. Cases:
i. Levy v. Daniels:
1. FAgency rented to driver, driver had and accident and passenger
sued rental company
2. The court: The vested rights doctrine would refer to the law of the
place of contracting which was CT, where the agent would be
liable to the third party beneficiary of the lease K for the
subsequent tort, BUT by using re-characterization as an escape
device the situs of the applicable law is shifted form the place of
the tort accident (Mass) to the place of the contract (CT)
3. H Contract claim, not tort. The CT statute making agencies
liable for damage done during rental was implied into the contract
under CT law.
4. Reasoning: Purpose of CT statute was to give the injured person a
right to recover form the rental agency—encourage people to rent
to careful drivers to keep the roads safe for everyone.
ii. Hamschild v. Continental:
1. FHusband and wife in accident in CA. There is spousal
immunity in CA where the tort occurred. In Wis. Wife could so.
2. Reasoning: Court re-characterized it as a family law issue because
historically the ability to sue was properly decided by the law of
the family’s domicile-they have primary responsibility for
regulating relationships.
a. Policy reasons: To look where the accident occurred would
cause confusion because the rights duties, dishabilles and
immunities conferred or imposed on the family relationship
would constantly change as members of the family crossed
state boundaries during temporary absences form their
home.
3. Holding:
a. Family law/capacity case—W can sue b/c spousal
immunity case, not a tort case—so look to the
husband/wife’s domicile.
2. Other issues involving torts and contracts:
a. Vicarious liability:
5
i. Tort question: When a person authorizes another to act for him in any
state and the other does so act for him in any state, whether he is liable for
the torts of the others is determined by the law of the place of the wrong.
(Section 387 RST).
Escape
Devices—
Substance v.
Procedure
b. Release from liability:
i. The construction and validity of a release form liability is governed by the
law of the place where it is executed, but its availability as a defense in an
action in tort is governed by the place whether the injury is committed.
Freeman.
 Overview of Substance v. procedure:
1. Substance—dependent on COL: When a foreign law is applicable, that law only governs
matters of substantive law.
2. Procedure—dependent on forum: The forum will not adopt the procedure of the foreign
forum, it will always apply its own procedural rules.
3. Characterization: This largely hinges on an issue of characterization (Bournias)
 The restatement first 584:
1. Forum characters based off of its own COL rules: Forum determines according to its own
COL rules whether a given question is one of substance or procedure.
2. But this does not change substantive rights: A party’s legal rights and duties shall not be
substantially varied b/c of the forum in which an action is brought to settle the dispute
3. Applications to SOL:
a. Barred by forum SOL, but not foreign SOL where claim arose: Claim barred
by forum SOL but not by SOL where cause of action arises, then the claim is
barred (RST, 603)
b. Barred by foreign SOL where claim arose, but not forum SOL: the claim will
not be barred (RST 604)
c. Action may not be maintained in any jurisdiction if: a state’s law is condition
a right to expire after a certain SOL has elapsed, no action begun after that period
can be maintained in any jurisdiction (RST 605).
d. If the SOL is substantive: if it is bound up in the state that created the cause of
action and it is foreclosed everywhere.
4. Other applications in RST:
a. Procedure in court, forum: All matters of pleading and the conduct of the
proceeding by the court or by the jury (592)
b. Mode of trial: The law of the forum determines whether an issue of fact shall be
tried by the court or by a jury (594)
c. Proof of facts: (1) the law of the forum governs the proof in court of a fact
alleged. (2) the law of the forum governs presumptions and inferences to be
drawn from evidence (595)
d. Witnesses: The law of the forum determines the competency and the credibility
of witnesses (596)
e. Evidence: The law of the forum determines the admissibility of a particular piece
of evidence (597).
 Applying the test to determine if it is substantive of procedural:
1. Test: Was the limitation directed to the newly created liability so specifically aimed as to
warranted saying it qualified the right (Yes--substantive, No—Procedure)
a. Labeling: How have courts in the past labeled it? Statutes (e.g., FRCP)
b. Linked with COA: If it’s so intertwined with the COA, have to take the bitter
with the sweet and accept the SOL of that cause of action, but if not part of the
cause of actin, forum is free to apply its own SOLs.
6
Escape
DevicesRenvoi
c. Ease of administration: Limit by what makes application of foreign law in a
local tribunal impracticable or inconvenient
d. Application: If statute is procedural, can be applied retroactively, but if its
substantive, cannot be applied retroactively.
e. Right v. Remedy: Right (substantive), remedy (procedural)
f. Policy: Who has the greater interest? Who would be hurt by one over the other
i. Prof Beale: Decide if policies satisfy reasons for applying the law of
forum—if practical convenience in local rule is great, and effect on parties
is negligible, then the law of forum controls
ii. Morgan: Law of focus is to be applied to all matters of substance, except
where its application will violate the public policy of the forum and apply
the procedural laws of the locus which have material influence on the
outcome of the litigation.
2. Another test is whether or not it is outcome determinative:
a. Substantive is outcome determinative: Out-of-court/primary behavior (like prefiling, or merits of the case, elements of cause of action, are outcome
determinative).
i. First RST, 606: The court should apply a limitation imposed by the state
where a cause of action arose if that limitation is a qualification of the
COA.
1. Limitations periods in wrongful death status are substantive
ii. Where foreign SOL is regard as barring the foreign right sued upon and
not merely the remedy, it will be treated as conditioning the right and will
be enforced by our courts as part of the foreign substantive law.
(Bournias).
b. Procedural is not usually outcome determinative: In-court behavior (methods
to bring that cause of action)
i. Not suppose to be outcome determinative: (just channel the dispute): e.g.,
statute of frauds, SOL, burdens of proof, joinder, counterclaim, right to
jury trial, survival or revival of cause of action (Grant)
 Applications and other rules:
1. Grant v. McAuliffe: Tort in AZ, both drivers form CA, estate in CA.
a. Holding: Survival of a statutory cause of action is procedural as its more
analogous of SOL law, b/c it does not create right of action just dictates when
you can bring it.
2. Specifity test (Bournais):
a. Holding: A SOL will be substantive if it is bound up in the state itself, but if
it is more general than that and is generally applicable and not part of the
cause of action itself, then the forum is free to apply its statute of limitations
i. If it had qualified the right then it would have traveled with it: If it had
qualified the right then it would have traveled with the statute of
limitations.
3. Burden of proof procedure: Applying the law of the forum to conclude that the
defendant had the burden of proving contributory negligence. Levy.
4. Parole evidence: Rule of substance rather than a rule of evidence
 Overview of Renvoi
1. Occurs when: forum state looks at foreign law, but foreign law looks back at forum state
2. The problem with Renvoi: Renvoi issue arises when distinguishing between the internal
law and the whole law
a. Internal law: law applied in purely domestic cases without multistate contact,
i.e., not choice of law rules
7


Escape
Devices—
Public
Policy


b. Whole law: Includes the choice of law rules
3. Renvoi is usually discouraged: in every approach but arises in certain pockets, where the
whole law and not just the internal law of a jurisdiction will be applied
Approaches to Renvoi:
1. The First RST(7) Only internal law w/ exceptions: Directed courts to ignore foreign
chose of law rules, and was hostile towards Renvoi
a. Exception: Except for title of land and validity of divorce decree rules, which are
controlled by situs of land and domicile of parties, respectively. In re Schniders
Estate.
2. The Second RST: Establishes the presumption that a choice of law provision is only
referring to the other forums internal law, but will use whole law to stop forum shopping
3. Federal Torts Claims Act(Richards 1962): Adopts law of the place where the act or
omission (negligence) occurred and adopts the entire law of that place.
Policy:
1. Beale: The logic behind Renvoi is that it should be applied where it is necessary for the
law to be treated the same in every state
Overview of public policy exception:
1. This should always be mention in choice of law analysis.
2. The public policy exception: The public policy exception is extremely limited and should
be considered only after determining the applicable law, it should be used only to repel
obnoxious foreign laws rather than justifying the applicable forum law.
a. The exception often times will swallow the rule: Where your rights will never
be truly bested if a court could always refuse to enforce rights on the grounds of
public policy
3. What is public policy?: Look to constitution or legislative acts, agency procedure, or
membership in community organizations—but little guidance so gives the judge
discretion.
4. Critiques of the public policy exception: (1) There is no real standard to apply, (2)
defeats the goal of choice of law principles to create predictability and consistency, and
(3) goes against uniformity and protecting reasonable expectations.
The first RST of Torts, 612:
1. First RST 612: Precluded suits under a cause of action created in another state the
enforcement of which is contrary to the strong public policy of the forum.
2. Forum contacts count: Public policy dismissal is a sign that the forum has some
significant relationship with the litigation and by right its laws should apply
a. Public policy is not determined by referring to the laws of the forum alone, look
in the prevailing social and moral attitudes of the community.
3. Foreign Sovereigns Deserve Deference: Courts are incompetent to deal with issues
arising btw two states—that role should be left to the legislature (Learned Hand.)
4. Treat parities fairly (Brandies, J.): Either dismiss or bend your public policy for form to
accommodate a “repugnant foreign law” (Holzer, dismissal was the uglier prospect—
unfair to apply some but not German law denying a remedy.).
5. Penal laws: Court in one state will not enforce the penal laws or tax laws of another state
a. States will not enforce the penal laws of other states:
i. There is a specific tie to jurisdiction
ii. Criminal laws are difficult to enforce, especially if there was a penal
judgment in another state
iii. Criminal law is tried only in the jurisdiction where the crime is committed
b. Indication that a law may be penal:
i. The government sues to vindicate a public right, especially when the
remedy is a penalty
8
ii. The government benefits in some way (penalty or fine) even if not
bringing the suite
iii. Private suit brought for the public good where the plaintiff keeps some of
the collected penalty (e.g., citizen suite statutory provisions rewarding
private citizens for bringing suit in environmental clean up cases)
iv. Punitive damages are not penal
c. Tax laws: The court will not enforce the internal revenue laws from another state.
 Common law rules:
1. The rule must really offend the public policy of the forum: Foreign law must be
inherently vicious, wicked or immoral and shocking to prevailing moral sense for the
foreign sense for the foreign claim to be denied local enforcement. Intercontental hotels.
a. Escape device is applicable only when enforcement of the foreign right would
violate: Some “fundamental principle of justice, good morals, or deep-rooted
tradition.”
b. Cardozo: Must be an extreme difference to allow a court to refuse a case.
Intercotental Hotels.
2. Tor committed in one state creates a right of action in another state unless public policy
forbids it: Loucsk.
a. Difference in laws, not enough has to be some fundamental difference:
Foreign based rights will be protected unless there is a some profound public
policy against it—the mere difference in laws is not enough. Loucks.
b. Loucks: Mass tort law had damage limitations, NY did not have cause of action
or limitation. The court found that the statute was not penal (not
criminal/sentencing) and NY public policy does not prohibit Mass COA being
heard in a NY court and no reason to refuse a cause of action just b/c the
legislature has not acted on issue in NY yet.
3. If a law would offend a states public policy and a more then just a mere difference in law,
then it does not have to be enforced: Mertz.
a. If more than a mere difference in law exists then public policy exception can
apply: State judges can only refuse to give reciprocity to another jurisdiction’s
laws if their enforcement violates some in state public policy here there is more
than a mere difference in law and the application of the foreign law offends the
forum law sense of justice. Mertz.
i. Facts (Mertz): W sued H for accident in CT (no spousal immunity),
domiciled in (NY spousal immunity) court would. NY is forum. Would
not apply CT law b/c was against public policy.
b. Cannot take the benefit of another states/ countries law and then say: A
forum cannot hold that its against the public policy for a party to raise a defense,
but then enforce a contract that was created according to the laws of another
jurisdiction. Holzer.
i. Facts of Holzer: German national sued German company for breach of
employment contract; company relied on defense that antiemetic German
law invalidated plaintiffs contract. Court held it was not against public
policy to allow the defense.
2. Modern Approach to Choice of Laws
TOPICS
CONTENTS
Overview
 Problems with the traditional approach
1. High price for conformity and predictability
2. Rationality and logic did not always prevail
3. Traditional rules could not solve increasingly complex conflicts
9

Rule of
Validation



Party

4. Problems with characterization
Statutory Solutions:
1. General Rule: Statutory rules on choice of law generally favors party autonomy:
a. Statutes for specific legal act:
i. Foreign wills: wills validity is governed for moveable property by the law
of the domicile at death and for immovable property under law of the
situs(First RST 249, 306).
ii. No-fault insurance provisions: States say that no negligence claims can be
made. But do not always dictate what happens out of state or to nonresidents in state
iii. Borrowing statutes: Detail when to dismiss and borrow the foreign SOL
1. Encourage docket clearing, avoid forum shopping, encourage
commence and fulfilling the intent of the parties to a contract (but
where did even arise?)
The rule of validation:
1. The rule relies on a presumption of validity: The rule of validation is based on the
presumption that when parties get to choose the law that governs their K, without any
fraudulent intent the parties are assumed to have wanted to choose a law that validated
the K that they entered into. Pritchard v. Norton.
a. There would have to be express intent otherwise: That the agreement was
controlled by another law.
b. Performance vs. validity:
i. Performance: law of the place performed
ii. Validity: law of place contract executed
c. Good practice: Keep some ties with the place whose law you think you choose.
First RST Approach:
1. Absence of fraud parties would make their contracts to be binding: In the absence of
fraud, assume parties to the contract would want to make contracts binding, so would
implicitly choose the law that validates their agreement. Prtichard v. Norton.
a. Voluntary submit themselves to that law: When a person enters into a contract
to be performed in a certain place, the parties voluntarilty submitted themselves to
that local law. Pritchard v. Norton.
Policy:
1. Policy:
a. Moves away from strict territorial approach: This approach moves way from
strict territorialism and empowers parties to choose the law government their
contracts, mostly in regards to issues of interpretation.
b. But may give less flexibility of choosing the law which makes their contract
valid: Yet to permit parties to stipulate the law that should govern the validity of
their agreement gives them an artificial device for avoiding policies of the state
that would otherwise regulate their agreement, thus less deference is given to
parties to choose law determining contract validity.
c. Professor Beale: party autonomy permits the parties to do a legislative act—frees
form otherwise applicable law:
i. Parties may have more control over COL governing a K than the First
RST would allow
ii. So might be attractive to contracting parties, but frowned on by the courts
and legislatures
iii. Should vindicate state regulatory interests, but balance with maintaining
party K freedom.
The Party Autonomy Rule(Contracts):
10
Autonomy
Rule
1. Party autonomy rule: The Second RST transitions away from territorialism approach,
instead requests that the court abide by the parties choice of law, unless there are
extraordinary circumstances in play.
a. Test to determine if party’s choice of law is valid (substantial connections):
Look to whether the state has an interest in the K. Party autonomy can be honored
on a validity issue if:
i. (1) The COL is in good faith/bonafide, and
ii. (2) the law is chosen must be that of the jurisdiction having some relation
other agreement (either the place of the making, or of performance)
iii. (3) No evidence of an attempt to evade a certain jurisdictions policy, and
iv. (4) Existence of a contrary statute, and
v. (5) whether chosen law is oppressive to one party. Siegelman.
2. Interpretation v. Validity becomes an issue: No clear difference, but for interpretation—
maximum party autonomy and validity issues—minimum party autonomy.
a. This may lead to characterization.
3. There is less party autonomy over other types of transactions where it is planned than
where it is accident: i.e., there is greater party autonomy in Ks(planned, than there is in
torts (accidental)
a. Trusts: Place where trust agreement was executed controls. Hope v. Brewer.
b. Domicile matters less where property is easily disposed of: Place of ones
property means less when your property can b disposed of easily in other places.
 The Second RST 187:
1. If parties choose a law first look to whether it is sufficient under Second RST 187:
a. Is it a choice of law issue for which they could have resolved with an explicit
provision? If so , then respect party autonomy and apply their chosen law
(187(1)). (this follows the rule in Pritchard and Siegelman—allows parties to
choose applicable law.
2. Apply the law that the parties chose unless (187(2)):
a. (1) Law of the chosen state has no substantial relationship to parties or
transition:
i. Don’t want to give parties unrestricted freedom to select governing
ii. Substantial relationship: Doing business in a sketch country and want to
have US/European law govern the K, or if you have ties to that area
(assets, company branches) or transitions for especially large sums or
complexity-can pick—shows they are especially sophisticated.
b. (2) The law of the chose states is contrary to fundamental policy of a state
which has a greater material interest in the issue and would be the default
law to apply:
c. (3) Absence of a contrary indication of intent: refer to local law of state of
chosen law.
3. Interest Analysis Approach
TOPICS
CONTENTS
Adoption of  Rule/ History:
interest
1. What is the rule: The interest analysis approach is another modern alternative to the
analysis
traditional territorialist approach.
2. Rule was developed from criticism of the territorial rules: Critics of the first restatement
were not happy with how find graduation of cats created completely different results.
Believing that the rule was overly harsh they looked for a more predictable alternative.
3. Interest analysis: Looks critically at the interest of a state involved in the dispute in
granting or denying recovery.
11
Performing
interest
analysis
a. Professor Currie: Advocates finding the purpose behind the law in conflict and
apply the laws that would advance those purposes and ignore laws whose
purposes would not be advanced even if the latter would be chosen by the
traditional approach.
4. When this approach is used: This approach is sued when either the parties di not choose
which law would apply, or the legislature either intentionally or unintentionally did not
address the conflict of law issue.
5. Do not really care where the accident occurred.
6. Critiques of interest analysis: Creates a fractured system—not as predictable as it would
be under traditional law---are not exempt form escape devices either
a. Statutes can also be subject to the same re-characterization issues
b. Statutes can still be subject to renvoi issue: US is liable in tort in accordance of
law of place where act occurred—does law of place mean internal or whole law?
Rchards.
 Step 1: Identify the interests:
1. (1) Figure out the purpose which led to the laws adoption, (2) determine which contacts
bring the cases with in that purpose.
a. Ask questions—to what problem is this law a solution, and to what facts are
implicated?
2. (2) Look to what a legislator had in mind when developing some statute: (legislative
history is helpful)
a. A court is not obliged to vindicate and enforce unconstitutional interest, thus if
there is an example of an explicit attempt to discriminate against some class,
thing in interest analysis says you have to give deference to that policy
3. (3) No guidance on determine when a state’s interest is determined
4. (4) Differentiating between loss-allocating or conduct regulating-still characterization:
a. Conduct-regulating: Outside of the courtroom before lawsuit (like speed limits)
i. Place of the tort has a more important interest in regulating
ii. Law of the place of the tort usually applies unless displacing it will
advance the relevant substantive law purposes without impairing the
smooth working of the multi-state system or producing great uncertainty
for litigants.
b. Loss-allocation: After the event, while in a court room, regulates burden of
injuries
i. Parties common domicile has paramount interest in allocating loss
ii. Guest statutes: Designed to protect only persons domiciled in the sate
with such rules
1. Also has the interest in preventing guests from conspiring to take
advantage of insurance settlements
iii. Fellow servant rules:
1. Conspiring
c. Note:
i. In tort, an interest of the domicile state is always compensation.
5. Look to the trends in case law: These cases show that choice of law is a concern among
states and within a single body of law, and can be resolved under the modern approach
through legislative interpretation. Look to the chronology of the laws, the intent behind
them and try to give meaning to as much as possible.
 Identify the type of conflict and try to apply the law of the forum:
1. Try to apply the laws of the forum: Apply the laws of the forum unless another law is
requested
a. If a foreign law is requested: The court should look to the polices behind the
12
True
Conflicts
respective laws and determine whether one or both have an interest in applying
their law
b. If only one state has an interest: This is a false conflict and the law of the
interest state should apply
c. If both states have an interest, this is a true conflict:
i. Should balance the states interest in order to determine if one state is more
interested
ii. If both states are equally interested, apply the forum law
1. This encourages forum shopping
2. It will also create difference results depending on where the case is
brought
iii. If neither state has an interest apply the forum law.
 Identifying true conflicts:
1. True conflict: A true conflict arises when apply one jurisdictions law undermines the
policies behind the non-chosen jurisdictions. Several methods can be sued to resolve such
conflicts
2. Applying the law of the forum
a. Suggested by Currie and seen in Lillenthanl: This is one way that has been
suggested in dealing with a true conflict .
b. When both states have equal interest the forum may apply its laws: Where
two states have an equal balance of interest in application of their own law to an
interstate K dispute, the forum is privileged to apply its own law so as to advance
its own public policy.
c. Since states that there are no objective standards for deciding what is the
fundamental law forming the forums jurisprudence: Courts should not engage
in the political function of assessing values of competing legitimate interest of
sovereign states.
i. Therefore the courts should apply the laws of their forum b/c these are
what they are best suited to interpret: Courts should be consistent and
apply the law that they are most familiar with and competent in applying ,
which is the forums own law.
ii. Policy reason for taking this approach: This approach has been criticized
for oversimplifying the problem and for ignoring judicial competency to
resolve
 (Alternative 1) The Neumier Rules(loss allocating cases):
1. Developed in NY, and adopted in other places: Originally developed in N to handle
guest statues rules, courts officially expanded their use to all loss allocating cases (but
may not apply beyond loss-allocating guest statute cases in NY).
a. Cooney v. Osgood: Looked at Nuemier and found that the local law of each
litigant’s domicile favors that party, have to look at interest involved.
i. Used to attempt to ensure predictability for litigants prevent from
forum shopping. Only place where both litigants subjected themselves
to is place of accident
2. Different variations of rules:
a. If the P and D are both form the same state and that domicile’s law has a
loss allocating rule, then apply the law of the common domicile: Used for
classic false conflicts. Law of place of injury is unlikely to have any of the
purposes of its loss distribution to advance these facts.
b. If P and are from different states look to the law of the place of accident:
i. (a) D not liable if D conduct takes place in his state and that state says
he is not liable
13
ii. (b) D liable if conduct occurs in Ps state and state finds D liable (state
protects P)
c. Place of injury should govern any remaining cases: Look to law of place of
accident, but not if another law will advance (1) relevant substantive purpose
without (2) impairing the working of the multistate systems or creating great
uncertainty.
3. What about a contract/non-tort case: Look at “center of gravity: in contract case
a. Look at second RST for five important contract contacts like place of
execution, negotiation, performance, subject matter of contract, domicile of
contracting parties.
 (Alternative 2) Comparative Impairment:
1. When there is a true conflict between the laws:
a. Look to see which state’s regulatory interest would be more impaired and
apply that law: The use of the comparative impairment analysis decide
which state’s regulator interest would be more impaired if its policy were
subordinated to the poly of the other state. Bernhard.
b. The result of this analysis is that the stricter law will apply: A court
should apply the law of the state w/ the stricter law as the other state would
not be impaired by being more strict, but stricter laws state would be impaired
by being lax.
2. Policy: Comparative impairment analysis helps to make trade-offs to maximize the
extent to which each state realizes its objectives in multistate cases.
 (Alternative 3) Moderate and restrained interpretation:
1. First look at the social objective underlying the law: This approach tests whether the
social objective underlying the law in question ill be furthered by the application of
the rule in cases like that presented. The answer determine the measure of the rule’s
important and the states interest in the conflict at hand. Use as a second step in
determine some other greater interest that cuts against the preliminary interest
analysis.
a. Like in Berkrant in contract cases, consider parties’ justifiable expectations
where a statute can be interpreted broadly or narrowly—choose narrow
interpretation.
2. This approach looks to the policy of the law, and determines whether a more
restrained interpretation would be appropriate: When the governmental interest
approach reveals an apparent conflict reexamine policies to determine if a more
restrained interpretation is more appropriate.
a. Look to a states real interest not their hypothetical interest
3. Brenkart v. Fowler: House sale, decedent orally promise to forgive debt, buyers sued
estate
a. California interest: Wanted to protect estates form false claims on alleged
oral contracts
b. Nevada Interest: All contracts in NV—want to protect residents rights who
are parties to the contract, policy that contracts be valid and enforceable.
c. Holding: Apply Nevada law. At first looks like a true conflict b/c contract is
invalid under CA (forum/dom), but valid under Nevada (where K made)
i. But: the court applies a “moderate and restrained interpretation” of the
polices behind the laws in conflict and finds that both laws are trying
to protect the reasonable expiations of the parts when they entered into
the contract.
d. Enforce contract where it was made: Policy of enforcing contracts valid
under the only law applicable when the K was made, and since the K was
14
entered into in NV apply that law. No reason for the parties expect that the
decedent would later move to CA and there would be a writing requirement.
False
Conflicts
4. Policy:
a. Carvers: The M&R approach is virtually the same as balancing the states
interest
b. Baxter: Look at what legislatures likely would have wanted had they
discussed application of their inconsistent rules in inter-state disputes.
c. Kramer: Should adopt policy selecting rules to direct courts to apply the law
that reflects generally shared policy or preference-forum scarifies procedural
politics in favor of another state’s substantive policies but gains by having its
polices favored when they conflict with a foreign sate’s procedural riles in
cases outside of the forum.
 Identifying false conflicts:
1. False conflict: When two or more states are involved in the dispute and only one is
interest in having the law applied. Apply the law of the state with the interest
2. When P and D are both domiciled in same state, usually, but not always a false conflict
(WHOOT, WHOOT, WHOOT): Usually apply the law of the common domicile (Tooker
v. Lopez)
a. People with different domiciles are not legally similarly situated, so its makes
sense to treat people of different domiciles differently.
b. Easier to defend law of common domicile—reduces forum shopping, and the
presumption that forum is always biased in favor of the forum law, easy to apply.
c. Plus, those parties can vote and change legislation in the forum (forum benefits)
3. False conflicts are really rare b/c you can usually find several purposes behind the law:
a. So false conflicts can be judge made: So false conflicts only where judges
assume away inconvenient argument (Prof. Singer)
4. Tooker v. Lopez: Tooker (passenger) killed when Lopez (driver) lost control of the car.
NY allows wrongful death recovery for passenger, but MI guest statute bars recovery.
a. Facts: Both residents of NY, car registered/ insured in NY, forum in NY, MI
accident
i. NY Interest: Make sure that passengers injured in actions are
compensated
ii. MI Interest: Do not allow passengers and drives to collude against
insurance companies, encourage people to give guests a ride.
b. Holding: NY has the only real interest in whether recovery should be granted, and
applying MI law would defeat a legitimate interests of the forums state without
serving a legitimate interest of any other sate (cannot collude against MI
insurance when insured in NY)
i. Jurisdiction enacting a law for the protection of guests has no interest in
the application of the law if the guests do not reside and are not suing
there.
5. Schlutz v. Boy Scoutts: P sue Boy Scouts for injures form molestation by
teacher/scoutmaster.
a. Facts: How to determine the right of recovery in an action by a foreign
domiciliary for torts that are wrong under both jurisdictions laws
i. Interests: Defendant boy scout HQ’d in Nj/Tx (no charity immunity), D
school HQ’d in OH (has charitable immunity), NY forum, P’s domiciled
in NJ.
ii. NY Policies: Compensate people injured w/ in their borders, deter people
form injuring others with in NY state borders
iii. NJ Policies: Do not punish charities—have a good purpose, protect
15
medical creditors, prevent inured tort victims from being public wards in
locus state
b. Holding: NJ law applies. NY has no significant interest in applying its own law to
dispute, as it cannot deter people who do not live there—applying NJ law reduces
forum shopping, provides certainty for litigants bout hot to act where they are
domiciled.
Interest
 Unprovided for cases ( no cases have a vital interest):
analysis in
1. If neither place has a vital interest: apply the law of the forum. Erwin.
Unprovided
2. Options for unprovided for case:
for cases
a. (1) Apply the law that appears to be “more enlightened and humane”
b. (2) Selfishly apply the law that aids the litigant who is a local resident
c. (3) Treat foreign claimants as they would be treated in their own state
d. (4) Most common: Apply the law of the forum—most rational and
convenient.
3. Erwin v. Thomas: Erin (from Washington) was injured by Thomas (from OR) in an
accident in Washington—Erwin’s wife sued Tomas for loss of consortium in OR.
a. WA interest: Believes that wife’s rights to relationship aren’t strong enough
to make negligent defendant pay wife (protects Ds)
b. OR interests: Protects rights of married woman—but not concerned of rights
of non-resident married woman injured outside of OR (forum).
c. Holding: Neither state has a vital interest, so forum law should apply (OR).
WA does not care if others require non-WA residents or respond to claims.
4. Policy:
a. Prof. Kramer: There is no such thing as an unprovided or case, but instead it
is a product of a misanalysis of state interests.
b. Prof. Wientraub: Advocates that courts must re-examine state interests to
find another policy that would be advanced by applying the law of one of the
states.
4. The Second Restatement
CONTENTS TOPIC
Rule/History  Overview of rule:
of the Second
1. Was developed in response to interest analysis: Developed out of a desire for a return to
Restatement
a unified method of addressing conflicts after the confusion and fragmentation that
arouse from interest analysis.
2. Most significant relationship test: In response the most significant relationship test
helps avoid problems with true conflicts.
3. Difference from the first restatement: Looks for rebuttable presumptions that identify
what most likely has the most significant contacts, Case, and under section 6 these
contacts are evaluated to determine which states have the most significant contacts with
the issue.
4. In away this takes the best of both worlds: This is more flexible than the first
restatement, i.e., it gives more power to the judge, but gives more guidance than interest
analysis.
a. But critics point out: The presumptive rules reflect a more refined consideration
of policies is deceptive given how often the rules replicate the first restatement.
b. Section 6 gives courts enormous discretion: Section 6 gives the court a laundry
list that allows the court to consider all of them when appropriate. This reduces
certainty.
c. Characterization: The second restatement requires some characterization, so
this also leads to uncertainty and manipulation.
16
Step 1
characterize
and look to
presumptions
Step 2 Use
factual
contacts to
identify what
other law
maybe
relevant to
jurisdiciton
Step in
analysis—
deterime if
statutory
directive, if
not apply 6
factors that
compose
MSR test
5. The steps: The court should pay attention to constitutional restrictions, and should apply
its own choice of law rules, but it should apply the law that has the most significant
relationship to the event under the Second Restatements balancing.
a. Quickly run through a summery of the steps.
 STEP 1: Characterize the case to find relevant provisions of the Second Restatement
that apply:
1. This provide a presumption on which law should apply:
a. Tort: Presumption under 146 that law of the place of injury controls
b. Contract: Presumption under 188(3) if place of negotiating and performance are
the same, that state’s law will usually be applied.
c. SOL: Without exceptional circumstances, forum applies its own statute of
limitations barring or allowing claim unless SOL of that state whose substantive
law applies bars the claim.
d. Land: Presumption under 215 that b/c land is within exclusive control of state
in which they are situated, local officials are the only ones who can lawfully deal
with them, so their law should apply (plus certainty/ convenience).
 STEP 2:Use the factual contacts to determine what other jurisdiction may have a
relationship to the parties or the event: these should go through step 3, i.e., the six factors
1. What other jurisdictions might have a relationship with the parties or the events?:
Analysis under 145 or 188 helps set the bounds for which jurisdiction might be in play
in determine the analysis under 6:
a. Torts(Second RST 145): Important contacts include
i. (a) the place where the injury occurred,
ii. (b) the place where the conduct causing the injury occurred
iii. (c) the domicile, residence, nationality, place of incorporation, and place
of business of the parties, (AND)
iv. (d) the place where the relationship, if nay, between the parties is
centered.
b. Contracts (Second RST 186): Issues are determined by the law chosen by the
parties under 187 (allowing party autonomy) or otherwise by principles of 199.
i. Second RST 188: Without an effective party choice of law, important
contacts are:
1. (a) the place of contracting,
2. (b) the place of negotiation of the contract,
3. (c) the place of performance,
4. (d) the location of the subject matter of the contract, and
5. (e) the domicile, residence, nationality, place of incorporation and
place of business of the parties.
 STEP 3: Run through section 6 of the restatement, choice of law principles 6:
1. Test the presumptive choice against the principles in 6: based on the facts of that case
and based on what kind of case it is (torts, contracts, etc.). Used to determine what the
actual relationship is.
2. The contacts that should be taken in account under 6(2): A court should follow the
statutory directive of its own state’s choice of law, but if there is none, relevant factors
should include.
a. (a) the needs of the interstate systems,
i. Want to promote harmony and facilitate commercial intercourse between
the states, as articulated in Philip)
b. (b) the policies of the forum
c. (c) the relevant polices of other interest states and the relative interest of those
17
Step 4:
Decide if the
presumption
in Step
1could be
overridden
by Step 3
states in the determine of the particular issue
i. This is like interest analysis: Have to consider whether applying the law
of a state with a relevant contact would further the purpose o f that state
was designed to achieve, so under the relevant policy test company facts
under 145 (a)-(d).
d. (d) Protection of justified expectations:
i. More relevant in contract cases, than in tort.
e. (e) Polices underlying a particular field of law:
i. Torts: includes compensation and deterrence.
ii. Contracts: Enforceability
f. (f) Certainty, predictability, and uniformity of result:
i. Only relevant to K/transaction work, not torts
g. (g) Ease in determination and application of the law to be applied
 STEP 4: Decide if the relationship is significant enough to override a presumption:
1. Here, presumption under 146 is that law of place of injury controls—but get to make the
arguments about strengths of opposing interests
5. The Better Law
TOPIC
CONTENTS
Rule/History  Overview of the better law analysis:
1. Developed by Prof. Leafler: This choice-of-law analysis was drafted in response to the
Second RST as an attempt to strike back against the issues that arouse due to
characterization. There are five basic choice influencing considerations that Leafler said
should be considered when determine which choice of law should apply:(a)
predictability, (b) maintenance of interstate and international order, (c) simplification of
judicial task, (d) advancement of the forum’s governmental interest, and (e) application
of the better rule of law.
2. Look for other states using it: It could be considered to be the better rule of law
3. Critics: This analysis will most likely lead to the application of the forum’s law b/c
forums will infer that there law is better.
Application
 Application of Professor Leflar’s “Choice Influencing Considerations”:
of the Better
1. Predictability of results: Plan certain law into your transactions to give results desired
Law rule
a. Certain industries build around predicting accidents (insurance), for torts and
contracts
2. Maintenance of interstate/international Order: Free social/economic commerce is good
for world
a. People who seek advantages offered by another state shouldn’t be allowed to
avoid the burdens associated with their choice. Jepson.
b. Assume a state will reciprocate and apply your law in next case where your
interest are greater
3. Simplification of the judicial task: Courts want to use their procedural rules—some
outcome determative rules, but besides that, look at characterization between rules of
procedure and substance.
4. Advancement of the forum’s governmental interests: Reasonable for the court to act in
accordance with some concern when it involves that state’s important social/legal policy
5. Application of the “better rule of law”: A state’s interest in a set of facts can only be
18
analyzed by reference to the content of the competing rules—choice between
jurisdictions and what is right.
a. This is just one way to determine the best result do not want judges to avoid
equity/ justice, so maybe best to allow them to do justice by picking better rule
b. As commentators, suggest, this is a great excuse for the court to apply the law of
the forum
Cases
 Application of the better rule of law:
1. Milkovich v. Sarri: Group domiciled in Ontario came into the US-car insured and
registered in Ontario, got into a car accident, guest injured, hospitalized in Minnesota
(forum).
a. Facts: Ontario has a guest statute (need proof of gross negligence to recover),
Minnesota does not.
b. Holdings: Minnesota should use its better law—no foreign guest statute allowed
i. Predictability of result: no place in a tort case because not applied
ii. Maintenance of interstate order: court identifies it as a true conflict
1. True conflict b/c no recovery allowed under Ontario law,
recovery under Minnesota law.
2. This would stop forum shopping
iii. Simplification of judicial task: Not a factor—easy to apply a negligence
standard
iv. Advancement of forums governmental interest: All states want to
administer justice, but the judges do not want to do things inconsistent
with Minnesota’s conception of fairness and equity (guest sates go
against the spirit of the times)
v. Better law: Isen’t better law just always going to be forum’s law?
2. Jepson v. General Casualty: P (Min.) injured in AZ (where he later moved), insurance
work in ND.
a. Facts: Ontario has a guest statue (need proof of gross negligence to recover),
Minn does not
b. Holding: ND law applies. Neither ND nor the old or the new Minnesota law is
better.
i. Predictability of result: Predictability is not a factor for torts, but its
important for K—reasonably expected state where insurance K issued to
govern, so cuts in favor of ND law—but this case involves both K and
tort.
ii. Maintenance of interstate order: Need to reciprocate btw states—do not
apply to law if another forums interest are grater (punishes P here)
iii. Simplification of judicial task: Not too much of an issue
iv. Advancement of forums governmental interest: MI does not have much
interest in fact, the move to AZ is irrelevant—look more at policy of
getting benefit of the K.
v. Better law: MI has since changed to prohibit stacking, so that cannot be
the better law—but is current one improved ?
6. Principles of Preference:
TOPICS
CONTENTS
History/Rule  Principle of Preference Rule is the creation of Professor Cavers:
1. Yet another creation by a conflicts of law professor, the Principles of Preference were
created by Prof. Cavers to help judges decide btw conflicting laws when dealing with
true conflicts. Cavers stated that “We may have to accept the adequately articulated ad
hoc decisions as an interim substitute, but we should preserver in the search for rules or
19
principles which would determine when the law of a state which served one purpose
should be preferred to the law of another state which served is different.
Analysis
 Analysis for torts:
under rule of
1. (1) Law of injury should apply if: its more protective of plaintiff’s than law of the
preference
defendant’s domiciliary state
2. (2) If it is less protective: Then the law of the plaintiff’s home state should apply
3. (3) A visitor subjects themselves to risk of jurisdiction: Visitor exposed himself to risks
of territory that he voluntarily entered so should not expect people living there to a
financial hazard that their law did not create.
 Analysis for contracts:
1. Apply the law where the transaction was centered: Apply the law of a certain state if the
party protected was from that state and the transaction was centered there.
7. Problems in Modern Choice of Law
TOPICS
CONTENTS
Background
 These are problems that repeatedly arise when applying the modern choice of law
rules:
1. While utilizing any of the above listed modern choice of law approaches certain
problems repeatedly arise for which several remedies have been developed.
Depecage
 Depecage involves applying different laws, to different issues of the case:
1. Doing multiple choice of law analysis for one case: Application of rules of different
states to determine different issues in a single substantive cause of action.
2. So it can involve multiple different laws to different issues in the same case: When a
case presents more than one choice-of –law issue and each is analyzed separately,
situations arise in which it is claimed that the law of one state should govern one issue
and that of another a second.
3. Comes up in the traditional approach: Separation of substance and procedure
4. This is an issue that will come up in any case.
5. Critiques:
a. Leads to extremely technical distinctions between the characterization of an
issue.
b. Often leads to inconsistent applications of conflicts of law issues.
c. Leads to the law being resolved in ways which are not consistent with any of the
jurisdictions
6. Jacek: Drives car from NJ to NY (where insured), wife injured, spousal immunity in
NJ, but not in NY, but no coverage under insurance in NJ.
a. But the court applied NJ law to the insurance contract, and law of NY (place of
accident) to tort (spousal immunity)—insurer found liable even though it could
not be liable in either NJ or NY.
Renvoi
 Renvoi—the debate is whether to take only whole law, or just internal law:
1. Debate is whole law or internal law:
a. Whole law: Both the substantive and the choice of law rules
b. Internal law: Just the substantive law
2. The whole law is usually applied when: foreign state has a legitimate interest in the
application of its law and police to the case at bar and the forum has none, such as land
cases where the land taboo applies.
3. Renvoi is usually discouraged.
 Renvoi terminology:
1. Rejects the renvoi: If forum state refuses to consider the choice of law rules of a state to
which it refers
2. Accepts the renvoi: If it follows the foreign choice of law rules it accepts the renvoi.
20
3. Remission: When a state accepts the renvoi, and that law returns the case back to forum
4. Transmission: when the state accepts renvoi, and that law sends the case to a third state
5. Partial: foreign choice of law riles is found to refer to the internal laws of the state.
6. Total: If the foreign reference is to the whole law of that jurisdiction
 Different options to deal with renvoi:
1. OPTION 1: Any reference to foreign choice of law rules means internal law rules—not
their choice of law rules:
a. First RST 7: Directed courts to ignore foreign choice of law rules:
i. EXCEPTIONS: except for title of land and validity of divorce decree
rules which are controlled by situs of land and domicile of parties.
b. Under Currie’s interest analysis method, do not use the whole law to
determine a state’s interest:
i. COL rules intended to limit scope and meaning of substantive law—so
reflect a state’s decision about not to extend local law.
2. OPTION 2: Replace rules with “rebuttable presumptions” against applying whole law of
foreign state
a. Reference to the law of the suits necessarily entails a reference to the whole law
of that country including the conflict of law rules (Schneiders Estate—esp if land
in foreign jurisdiction.).
b. RST 2d 8(2): Recognizes renvoi whenever the forum’s goal is reach the same
result on the very same facts involved as would the court of the forum state.
3. OPTION 3: Accept renvoi back to forum, but prevent door form going on forever:
a. Use whole law of foreign jurisdiction as a justification for applying law of
forum—Just as logical to stop at the second as third revolution (Griswold
i. Renvoi should end b/c court made decision not to agree with that other
court’s law allowing another state to dictate the applicable law is
“nothing less than an abdication of severity. Lorenzen.
ii. Renvoi methods may encourage reciprocity and discourse forum
shopping. Foreign COL rules are informative, but are not binding and do
not need to be considered forum finds it useful to resolve a case.
8. Rules vs. Standards
TOPICS
CONTENTS
Rule v.
 Rigid rule vs flexible standards:
Standards
1. This distinction: This distinction btw rigid rules and flexible standards appears to be
really a false conflict b/c whatever method people actually adopt is going to combine
combinations of both.
2. Rules create characterization problems: Rules create characterization problems b/c they
have gaps and ambiguities, but standards will create rule like patterns of decisions.
 Rules:
1. It is cheaper and easier to have rules: fixed principles announced beforehand limit
arbitrariness of decision, improve predictability, let people plan ahead
a. Rules create arbitrary results: Need some subjective case-by case analysis to
be fair
b. Standards: RST’s are intended to restate patterns of decisions into something
more rule-like.
9. Choice of Law Rules in Complex Litigation
TOPICS
CONTENTS
Multi There must be a single choice of law for class actions for it to be certified:
Jurisdiction
1. To certify a class action: Litigants want to bring class-actions in a place that assures that
Mass Class
the class will be certified, as a court is likely to deny class certification when a COL
21
Actions
Analysis
Cases
inquiry points to multiple states with conflicting laws.
2. But courts tend to bend all of the laws to make one apply: Yet courts seem to go to great
lengths to bend COL rules so that only one law is elected to govern all claims
a. Courts will do depecage for subgroups: For difficult class certifications, could
create sub-classes and resolve the class that way—different COL for each sub
group (semi-depecage for class actions).
b. ALI 6.01: Transferee court shall choose the law government rights, defense of
parties with the objective if feasible, of applying a single state’s law to all similar
tort claims assessed against a D.
i. Certify classes to be efficient, but efficient goes away with too many
COL rules to apply.
 (1) In multi-state class actions, COL inquiry can be dispositive, courts cannot certify
unmanageable classes:
1. Example: Product liability action against Bridgestone and Ford—DENIED CERT.
a. Indiana was a lex loci jurisdiction, so since financial losses occurred in all 50
states and not in D’s headquarter, so the class is unmanageable and
uncertifiable.
2. Example: Product liability action against tobacco manufactures—CERT GRANT
a. P’s from all states, claim alleged conspiracy to conceal data, punitive
damages for conspiracy in NY where D’s HQ’d (certified—does not want
NY to be a haven for corrupt corporations).
 (2) Some black letter doctrine exists regarding choice of law in multi-state litigation:
1. Not black letter law: But courts have an instutioanl preference to find a single state’s
law that applies in complex litigation—Air Crash (applying IL law for punitive
damages).
2. Klaxon: Erie, a federal district court in diversity has to apply the COL rules of states
where it sits.
3. Van Dusen: When a case is transferred between federal district courts, the court
where it’s transferred to applies the law of the state where it is transferred from.
 Application of case law:
1. In Re Air Crash Disaster Near Chicago: Residents for numerous states (118
wrongful death actions)
a. Facts: Place of crash and the forum (7th Cir. Klaxon): Ill
b. Difference in law: No punitive—Ill, CA, NY. Punitive-Miss, TX, OK
c. Holding: Ill. Applies. Cannot arrive at a moderate and restrained
interpretation to avoid true conflict, and no rebuttal of the presumption to
apply Il, So no punitive damages.
d. Analysis:
i. Step 1: Is there a true conflict? Yes-look at COL rules of state where
the actions were filed—some allow punitive damages, some do not,
so true conflict which cannot be reconciled.
ii. Step 2:So apply the conflict of law theories of the forum states
1. MO has an interest: In preventing wrongful design and
manufacture—to not include their interest would be to
encourage companies to locate in numerous states
2. CA has an interest: Want to encourage people to do business
in the state (protect companies form punitive damages)
3. So looks at forum/injury: IL has an interest in promoting
airline safety but also of encourage airlines to do business in
that state
iii. Step 3: Is the Second RST presumption overcome? No-IL COL says
22
place of injury has the MSR under 175 and CA or Missouri don’t
have a MSR and Illinois—plus they conflict
2. In Re Agent Orange Product Liability: Vietnam ware veterans and families sued b/c
of Agent Orange product liability.
a. Facts: Court had to apply COL rules of original transferor courts (under
Klaxon and Van Dusen)
b. Holdings: Apply “national consensus law”-J, Weinstien: Sensible to treat all
veterans the same for injuries fought in a foreign war, and under Prof.
Leflers, Second Restatement and Interest Analysis, and traditional rules, and
lex foir approach—probable all same result—national consensus law.
i. Likely each state would look to a federal law for manufacture’s
liability, punitive damages
ii. Too many states with relevant contacts under Second RST 143 and 6
plus three countries
1. Couldn’t identify the interest of any one state as being
sufficiently greater than any other to justify application of
that state’s law.
iii. Notes: Court basically yelled at congress for not addressing the agent
orange issue
1. Wanted to create a sub-classes on common issues of fact, did
not articulate standard b/c was encouraging them to settle
(admonished by 2nd Cir Court of Appeals later on).
iv. Would have probably been easier if there was federal common law
and overrule Klaxon and Van Dusen.
Class Action  Class Action Fairness Act:
Fairness Act
1. Can be removed into district court without: regard to whether any D is a citizen fo state
where the action brought except such action may not be removed by any D w/o consent
of all D’s
2. The rule after CAFA:
a. Can still kill the class: that more than one states law will apply
b. So this will break up Depecague.
9. Substantive Limits on Choice of Law
TOPICS
CONTENTS
SOL/Statutory  Some times SOL effect the cases:
Limitations
1. See Bournias—argument, SOL is not general but specific to this COA
on Choice of
2. Sometimes the SOL may be a limitation: it is a de facto denial of a forum
Law
3. Any state—federal court interaction: Klaxon, Erie—A federal district court in diversity
has to apply the COL rules of state where it sits.
4. Removal/Transfer: Has to apply the law of the state for which it was transferred from
10. Const. Limitations on Choice of Law
TOPICS
CONTENTS
Overview—
 How the constitution impacts choice of law:
This overview
1. Protects against unfair surprise: Protects parties by preventing unfair surprise,
provides a two
promoting interstate harmony by giving full faith and credit to sister state judgments.
part test. Go
Although there are no explicit restrictions in the cosnt. Limiting which choice of law
into greater
method may apply, the constitution does place restrictions on the result.
detail down
 1. Look at fairness:
below.
1. If application unfair, then may be unconstitutional: If it’s constitutionally unfair to hold
one party to a certain law, then the application of that law to the parties is
unconstituonal (Home Insurance)
23
Due Process
a. State must have significant contacts or aggregation of contacts to the
parties or transaction: The state must have contacts or aggregation of contacts
to the parties or the transaction creating state interest such that the application
of states law is neither arbitrary or fundamentally unfair. Allstate( convergence
case).
b. If subject to benefits must also be subject to burdens: The parties getting
benefits of one state’s law might also be subject to its burdens (take the biter
with the sweet) ( but Bradford shows that having any contact is not enough).
 2. States Interest:
1. There has to be some contact w/ state law and issue: Have to find a sufficient forum
contact to justify finding a state interest in application of Due Process, exercise
legislative jurisdiction. AK Packers, Pacific Employers, Bradford.
a. Must be at least some minimal contact between a state and the regulated
subject matter: There must be at least some minimal contact between the state
and the regulated subject matter or transaction before the state can, consistent
with the requirement of Due Process, exercise legislative jurisdiction . (Gerling
Global).
i. States interest: Hast to be:
1. Legitimate/constitutionally valid (no valid state interest In
discriminating), AND
2. Engaged in these case’s specific facts ( not just interest behind
law, but there interest are connected –his lines if policy is
connected to facts).
ii. Sufficient contracts: The exercise of jurisdiction does not offend DP if
the pertinent party has certain minimum contacts with the jurisdiction
such that the maintenance of the action does not offend traditional
notions of fair play and substantially justice.
b. Can have PJ contacts without sufficient COL contacts:(Gerling—was within
the PJ of the FL courts, but FL couldn’t apply FL law to company)
i. Schuttes: Courts had PJ in Kansas, but Kansas law couldn’t apply
ii. PJ: Look at contacts between regulated party and the state
iii. COL: that place contacts could regulated subject and state
 Due Process Clause Violation:
1. If a choice of law creates and unfair surprise, then it is a due process violation: If the
use of a certain COL method results in the application of the law such that unfair
surprise is trigged, then the constitution will not allow it b/c it is a due process
violation.
a. A court will uphold application of forum laws unless: It is an arbitrary and
unnecessary interference with the individuals right to personal liberty (right to
contract).
b. As long as forum has a reasonable relationship to parties it may reject all
foreign law in favor of its own: As long as the forum has a reasonable
relationship to the parties or the cause, it may reject all foreign law in favor of
its won law, but where there are no such contacts due process imposes limits.
i. Hartford v. Delta: A state may limit/prohibit certain contracts with in its
territory, but it cannot extend the effect of its laws beyond its borders to
destroy or impair the rights of citizens of others state to make a contract
not operative in its jurisdictions, and lawful where made
c. A state does not need to substitute its laws for another if it is competent to
legislate: A state does not need to substitute the statutes of others states for its
won statutes dealing with a subject matter concerning something that it is
24
Privileges and
Immunities



Equal
Protection
Clause

competent to legislate.
i. Forum is always privileged to apply its own procedure: but choice of its
procedure can be unconstitutional if the rule itself is unconstitutional
(too surprising), so application of sate’s procedural law in its own forum
is likely constitutional.
Privileges and Immunities/Equal Protections:
1. Courts may not discriminate against another state’s laws: Implicit (Hughes) and
explicit (Broderick) discrimination against another person will be considered to be
invalid.
2. Forum must open its laws to the courts of another state unless: A forum must open their
courts for foreign based causes of action unless:
a. (1) The forum has real antagonism against the foreign state’s laws:
i. Court needs a sufficient justification to refuse to enforce a foreign
judgment and must tailor the discrimination to fit that jurisdiction
b. (2)The case does not meet forum non conveniens requirements (Ex:
administrative difficulty).
Privileges and Immunities Clause Protects more than just the economic or
commercial interest:
1. Cannot discriminate against another state’s citizens: Discrimination against citizens
of a certain states will trigger the privileges and immunities clause
2. So if a law strikes down a national interest in individuals mobility, it is likely it
violates privileges and immunities: This is only a rough test, not a firm one.
a. Prof. Laycock: If legislatures acted generally on Currie’s view that they
owe nothing to the citizens of sister state, the Union would be destroyed.
3. Good example would be distinction btw recreational and professional licenses:
Recreational licenses can be restricted in a way that professional licenses cannot
(no fundamental need to fish, but fundamental need to work)
a. No problem with traditional choice of law—phrased without regard to
where parties were domiciled, just look at vested rights based on where x
happened.
b. But with interest analysis: recognized domiciles as important state interest,
so that increased importance of P and I cause in reducing discrimination.
Limitation’s of the Privileges and Immunities Clause:
1. Prevents discrimination only against citizens, not residents of other states:
a. But in Piper citizens and residents are used interchangeably
2. Protects privileges were those that were only fundamental in some sense:
a. The opportunity to practice law is a fundamental right: legal provision
is important in the national economy and also attorneys play a noncommercial role and should be protected under the privileges and
immunities clause. Piper.(bar admission denied b/c did not live in state
unsconstituional).
b. Only those vital to nation are protected: Only those that bear of the
vitality of the nation are protected, e.g., like working across state lines, not
hunting elk. Baldwin.
Equal Protection Clause functions similar to the privileges and immunities clause:
1. Equal Protections clause functions similarly to the privileges and immunities clause
by:
a. Preventing discrimination against foreigners (AND)
i. The test of reasonableness of the distinction is the same in P and I
and EPC,
b. EPIC forbids unreasonable distinctions between citizens of the state
25


Full Faith and
Credit


whose law is in issue
Privilege immunities and interest analysis:
1. Under interest analysis a state that is interested in applying is law b/c a party is a
resident withholds the protection of that law form a non-resident in the interest of
comity: to leave room for the non-resident’s home state.
Overarching Equal Protection Rules:
1. No state may:(1) discriminate against foreign based CAUSE OF ACTIONS by
systematically depriving its local courts of jurisdiction over them (Hughes)
a. State cannot make law that prohibits other laws from being heard in its
court: A state cannot escape the constitutional FF&C obligations to enforce
the rights and duties validity created under the laws of others states by
removing jurisdiction from courts otherwise competent to hear the claims.
Hughes.
i. Huhges: Law was held to be unconstitutional that did not allow for a
wrongful death to be heard in WI court that occurred in IL b/c the
forum excluded foreign wrongful death statutes.
2. No state may: (2) Discriminate against foreign forums (Tenn Coal) by limiting
disputes under its law to its own courts:
a. An action may be heard in another state even though the state creating
the cause of action say it cannot: a transitory cause of action be
maintained in another state even though the statute creating the cause of
action provides that the action must be brought in local domestic courts—
cannot create a transitory cause of action and then destroy the rights to sue
under it in certain courts. Tenn. Coal. (AL statute said that cause of action
must be brought in AL and nowhere else. This limitation was struck down).
Do they have to give FF&C to all “Public Acts” meaning statutes? Policies?
1. Art. IV, Section 1: FF&C shall be given in each state to the public acts, records,
judicial proceedings of every other state. And congress can by legislating prescribe
the manner in which Acts, Records, and proceedings shall be proved and the effect
thereof.
2. Prohibits one state to legislate form another or to protect its laws across state lines:
This is most announced when a state will apply its own workers comp laws where
an out of state employee is injured in its state. Pacific Employers.
a. Requires that a state respect the legitimate interest of other state and
avoid infringements on their sovereignty: However it does not require the
forum state to apply foreign law every time foreign state shave any contact
to transaction.
b. Only violated if application of forum law threatens national unity:
FF&C is violated only if application of forum law threatens federal interest
in national unity by unjustifiably infringing upon legitimate interest of
another state.
Policy:
1. Interstate tensions will be reduced if states are required to recognize and enforce the
acts of others states (needed to make one nation out of many sovereigns—ensure
interstate respect):
a. A rigid and literal enforcement of FF&C would lead to an absurd result, that
a forum would always be forced to apply the law of the other sate involved.
26
11. Constitutional Limitations on Recognition and Enforcement of Judgments
TOPICS
CONTENTS
Res Judicata
 Res Judicata:
1. F2, where judgment is being enforced, is required to give res judicata to F1,where
the judgment was entered: The FF&CC is interpreted to require another court to
apply the res judicata law of the rendering state, meaning that a second forum has to
give effect to the final judgments considered in the first forum.
2. Policy: The FF&CC attempts toe prevent the rehearing of claims once a forum has
decided certain matters, thus minimizing the judicial energy devoted to each case,
establishing certainty and respect for court judgments and protecting the policy
relying on the previous judgment to prevent continuous litigation.
3. Relationship btw state and federal courts: Federal courts have to give FF&C to state
judgments and state s have to give effect to federal courts too, but this is under 28
USC 1738, not the constitution.
 What is the same cause of action:
1. Substance and procedural law are applicable to both actions
2. The same right is alleged to be infringed by the same wrong in both actions
3. The judgment sought on the second action would infringe on the rights as those
sought in the first
4. The same evidence would support both actions OR
5. The operative facts are the same in both actions
 Administrative Orders:
1. Administrative orders are judgments: Administrative orders are treated the same as
judgments if the agency is empowered to adjudicate rights but FF&C and
preclusive effect is not given to an un-appealed arbitration proceeding—arbitration
without a court review is not a judicial proceeding under the meaning of the
FF&CC.
 Issue vs. Claim Preclusion:
1. Claim preclusion: Cannot re-litigate the same cause of action where there is a final
judgment in a different forum
2. Issue preclusion: Cannot re-litigate the same set of issues that was heard in another
jurisdiction.
 Final Judgments are magical, even if it is a screw up in the other jurisdiction still
must stand:
1. F2 judgments are enforceable even if they go against the law of the state which they
are brought: Judgments from other states are enforceable even if they go against
the law of the sate where they are brought to be enforced. Fauntleroy.
a. A judgment is conclusive: as to all the media concludendi and it need not
authority to show that it cannot be impeached either in or out of the sate by
sowing that it was based upon a mistake.
b. But lack of jurisdiction may be show: It could be shown that the court
lacked jurisdiction, which could open the issue back up.
Domestic
 Exceptions to the full faith and credit preclusion:
Limitations Of
1. Very limited exceptions:
Legislative
a. No public policy exception: To the recognition and enforcement of
Jurisdiction
judgment under the FF&CC.
b. However: the general preclusive rule of the FF&CC is subjected to a small
number of exceptions.
c. F2 may refused judgments of F1: This is to avoid results that may be seen
as being overly harsh.
 There are four main categories of exceptions, (1) Procedure, (2) public policy(land),
27
(3) non-final support decrees, (4) evidentiary issues, (5) workers comp.:
1. Procedure—If F1 lacked personal or subject matter jurisdiction, F2 must be
enforced if domestic court:
a. If fully and fairly litigated and finally decided must give full faith and
credit even if there is improper SMJ or PJ:A judgment is entitled to full
faith and credit—even as to questions of jurisdiction—when…those
questions have been fully and fairly litigated and finally decided in the
court which rendered the originally judgment. Dufreee.
i. Final: A judgment is final when it is enforceable, it does not matter
that it can be appealed
2. Public Policy—This exception only really applies under the land taboo:
a. F2 has an interest in keeping land in its borders clear, and may reject
foreign state judgments: Do not have to give full faith and credit the extent
that a foreign state judgment is trying to effect land in another’s state.
i. This occurs in intestacy transmission: The land taboo governs to the
extent that the land is transmitted w/ in a state. Clarke.
b. Better option is get personal jurisdiction over the person: May force the
person to execute a deed of title regarding the land in another state by
threatening that person w/ contempt if they do not. This is only if the court
has jurisdiction over the subject matter. Fall v. Eastin.
c. Gambling will not trigger it: If there is a gambling debt in F1 it will be
enforced in F2 even if gambling is illegal in F2. Faunteroy.
3. Non-final divorce decrees:
a. If non final when entered into in F1 may re-open and modify in F2: In
an action to enforce modifiable support obligations either party may tender
and litigate any plea for modification that could be presented to the courts of
the state where the alimony or support decree was originally rendered.
Worthly.
b. To the extent that it is left open there is no res judicata: To the extent
that the judgment is left open there is no res res judicata.
4. Evidentiary issues/ the method of enforcement does not travel:
a. F1 decree on a procedural/evidentiary issue will not travel to another
jurisdiction: The exact mechanisms of forum judgment do not travel with
the sister state judgments a preclusive effects do. Baker. (btw same parties).
5. Workers compensation:
a. F2 can reopen an F1 judgment in the area of workers compensation:
Workers compensation is a proceeding w/ in the meaning of the FF&CC.
12. Congressional Limitations of the Full Faith and Credit Clause
TOPICS
CONTENTS
Overview
 Congressional limitations of the full faith and credit clause:
1. Congress has the authority to implement the full faith and credit clause by: Drafting
legislation, but Congress has not taken the opportunity to do this.
2. 18 USC 1963:
a. Provides for the registration of federal court judgments in other federal districts,
permitting execution w/o further litigation.
b. This statute is limited to actions for the recovery of money or property and thus
has been held inapplicable to an injunction.
c. But the court added that the injunction acts nationwide by its own force and
therefore is unnecessary for registration.
28
 There is a presumption that federal courts must give FF&C to state judgments:
1. If Congress passes a law prevented FF&C: need the statute to explicitly say that
there is no FF&C given to certain judgments
2. If congress is silent: about an exception to FF&C then no exception is presumed.
Preclusive
 State court judgments will be under 1738 unless a federal statute partially appealed
effect of a
1738:
state
1. Step 1: When faced with a state court judgment relating to an exclusively federal
settlement on
claim, a federal court must first look to the law of the rendering state to ascertain
a federal class
the effect of the judgment.
action
a. When a judicially approved settlement: federal court may consequently find
guidance from general state law on the preclusive force of the settlement
judgments.
2. Step 2: If the judgment is final the court must next decide whether as an exception
to 1738 it should refuse to give preclusive effect to the state court judgment:
a. The general question is whether the concerns underlying the particular
grant of exclusive jurisdiction justify a find of implied repeal of 1738:
i. Resolution of this question will depend on the particular federal statue
as well as the nature of the claim or issues implied in the subsequent
federal action.
1. The principle consideration must be the intent of congress.
Matushita.
13. Recognition v. Enforcement
TOPICS
CONTENT
Recognition v.  Recognition v. Enforcement:
Enforcement
1. The difference btw recognition and enforcement: Difference btw whether judgment
is entitled to any recognition in F2 and whether that judgment should be treated the
same in F2 as it would be by a F1 court.
 Erie Doctrine:
1. After Erie, federal courts are supposed to use the enforcement regime of the sate in
which the courts sits, which is strange b/c this then gives state laws a say in foreign
affairs:
a. Do not want to give sates discretion to decide foreign policy (and do not want
50 different approaches)—no supremacy clause application b/c no federal law
on the issue.
14. Conflicts in International Law
TOPICS
CONTENTS
Erie Applies
 Courts sitting in Diversity have to apply the choice of law of the state in which it sits:
in the
1. This applies also in the international law context: Mostly the Foreign Money
International
Recognitions act.
Law Context
Legislative
 Legislative Jurisdiction—the ability to apply our own US Law to foreign defendants
Jurisdiction
in both criminal and civil cases:
1. Territoriality of the offense:
a. If the effect of the activity elsewhere has an impact with in the territory of
second state, the second state, the second state may exercise legislative
jurisdiction over offenders
b. We require this w/ in the U.S.: if a person commits a crime in one sate and
escape to another, he will be extradited to the jurisdiction of his crime.
2. Nationality of the offender:
a. This time of jurisdiction includes both the power to act and the power to apply
29
Limits on the
application of
international
law

Limits on

extraterritorial
applications of
U.S. law


state’s own laws to its national.
3. Protection of the national interest:
a. The basis for exercising legislative jurisdiction must include direct effects on
governmental interest.
4. Universal principle:
a. Heinous crimes—only specified crimes fall w/ in this category—includes plane
high jacking—Yunis.
5. Passive Personality principle based on the nationality of the victim:
a. This will not apply every time a victim is a U.S. citizen—should be limited to
terrorism and assaults on U.S. citizens
b. From the perspective of the defendant, maybe the law is different in that
country and the expectation of the defendant is that the laws of his estate should
apply
Limits on the application of international law:
1. Addressed very similar to U.S. conflicts: The Supreme court has addressed
extraterritorial conflicts very much like domestic conflicts—with only additional
considerations of customary international law and other principles of comity.
2. Due process limitations:
a. Law applied must have connection to the defendant in the case
b. The application of the law cannot interfere with the President’s power to deal
with foreign relations.
3. Will not apply laws that will force a U.S. court to violate the constitution: The court
will not apply foreign law that force it to violate the U.S. const.—this came up in
the cyber space issue. Yahoo!.
Limits on extraterritorial application of U.S. law:
1. Folely Brothers Presumption: Legislation of Congress unless a contrary intent
appears is meant to apply w/ in the territorial jurisdiction of the U.S.
a. To be overcome have to be shown that Congress wanted to:
i. Explicitly, consciously, and had the affirmative intent for the statute to
extend beyond the U.S. territory.
2. General preference to interstate commerce is not enough: General reference to
interstate commerce does not defeat the presumption.
a. Application of 10b-5 in Morrison: Section 10(b) reaches the use of a
manipulative or deceptive device or contrivance only in connection with the
purchase or sale of a security listed on an American stock exchange and the
purchase or sale of any security in the U.S.
Application of U.S. Anti-Trust Laws Abroad:
1. The anti-trust laws only target foreign conduct where:
a. (1) Sufficiently affects American commerce, i.e., it has a direct, substantial and
reasonably foreseeable effect on American domestic, import, or certain export
commerce, (AND)
b. (2) Has an effect of a kind that antitrust law considers harmful, i.e., the effect
must give raise to a Sherman Act claim
2. Policy: Application of these laws in foreign jurisdiction creates a serious risk of
interference with a foreign nations ability to independently regulate its own
commercial affairs.
ALTERNATIVE: The Restatement on Jurisdiction to Prescribe/ Restatement (third)
of U.S. Foreign relations Law:
1. This is a balancing test: Balance the interest involved in a particular case and defer to
foreign law where foreign interest is paramount
2. Subject to 403, 402 allows the U.S. with respect to:
30
Recognition
of Foreign
Judgments
a. 402: Base of Jurisdiction to Prescribe, must be run through 403
i. (1) (a) conduct that fully or partially took place in the U.S., (b) the person or
thing has a connection to the territory, (c) the extraterritorial conduct had or
was meant to have effect w/ in the territory
ii. (2) the activities, interest, status, or relations of its nationals outside as well
as with in its territory,
iii. (3) 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
b. 403: Limitations on Jurisdictions to Prescribe:
i. (1) Cannot exercise law w/ respect to a person or an activity having
confections with another state when the exercise of jurisdiction is
unreasonable.
ii. (2) The factors below must be examined to determine whether the activity is
unreasonable:
1. (a)the link of the activity to the territory of the regulating state, i.e.,
did it take place there? Does it or could it possibly effect the
territory?
2. (b) Is the person resident or is there connection to the activity that
the state is seeking to regulate?
3. (c) Is it desirable to regulate and is the degree of regulation generally
acceptable.
4. (d) existence of justified expectations that might be protected or hurt
by the regulation.
5. (e) the important of the regulation to the international political, legal,
or economic system
6. (f) the extent to which the regulation is consistent with the tradition
of the international system
7. (g) the extent to which another sate may have an interest in
regulating the activity.
8. (h) the likelihood of conflict with regulation of another state
iii. (3) When there is a conflict btw two states exercising jurisdiction over the
matter, they should look at the factors in (2) and defer to the state, which
has the clearly greater interest.
 Not given full faith and credit like sister state judgments:
1. Forum judgments are not entitled to full faith and credit like sister state judgments.
 Dicta from Guyot provides foundation of when foreign judgments will be recognized:
1. A foreign judgment is presumptively enforceable, so long as there was:
a. Full and fair trial
b. Competent jurisdiction
c. Regular proceedings
d. Adequate Notice
e. Impartial justice between aliens and citizens
f. No prejudice in the court
g. No prejudice in the laws
h. No fraud in procuring the judgment
i. No other special reason for denying comity
 Restatement (Second) of Conflict of Laws 98:
1. Presents a compromise view on the issue: A valid judgment rendered in a foreign
nation after a fair trial in a contested proceeding will be recognized in the US so far
as the immediate parties and the underlying cause of action are concerned
31
UFMJRA
 Default Judgments:
1. When a judgment is rendered in default in foreign country will not be enforced:
when the defendant challenged personal jurisdiction.
 General Provisions:(adopted in some states)
1. Definition: A foreign judgment means any judgment of a foreign state granting or
denying recovery of a sum of money other than a judgment for taxes, a fine, or
other penalty or a judgment for support in matrimonial or family matters.
2. Applicability: This act applies to any foreign judgment that is final and conclusive
and enforceable where rendered even though an appeal therefrom is pending or is
subject to appeal.
3. Recognition and enforcement, 3: Except as provided in Section 4, a forum
judgment is conclusive to the extent that it grants or denies recovery of a sun of
money
a. Provided with a full faith and credit like effect. (2005).
4. There are personal jurisdiction provisions:
a. Various provisions in 5
5. Must not recognize judgments if:
a. (1) 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. (2) The foreign court didn’t have personal jurisdiction over the defendant,
but see 5, OR
c. (3) The foreign court did not have jurisdiction over the subject matter
6. Discretionary Grounds for non-recognition:
a. A foreign judgment need not be recognized if:
i. (1) the defendant in the proceeding in the foreign court did not
receive notice of the proceedings in sufficient time to enable him to
defend
ii. (2) the judgment was obtained by fraud,
iii. (3) the cause of action claim for relief on which the judgment is
based is repugnant to pubic policy of this state
iv. (4) the judgments conflicts with another final and conclusive
judgment
v. (5) the proceeding in the foreign court was contrary to an agreement
btw the parties under which the dispute in question as to be settled
otherwise than by proceedings in that court, or
vi. (6) in the case of jurisdiction based only on personal service, the
foreign court was a seriously inconvenient forum for the trial of the
action.
 Burden of proof:
1. Burden is on the party seeking enforcement has the burden to prove that the
judgment is subject to the Uniform Act. (2005).
 Statute of limitations:
1. If it cannot be enforced in F1 (the foreign country) it cannot be enforced in F2 (the
US).
2. If not SOL: 15 years. (2005)
32