Conflict Lsu Ouline - 2008 - Short_johnson

8/7/2019 Conflict Lsu Ouline - 2008 - Short_johnson

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Conflict of Laws LSU Outline 2008

CONFLICT OF LAW JOHNSON

I. CHOICE OF LAWA. CHOICE OF LAW IN LOUISIANA (BOOK IV)

** applies prospectively as of 1/1/92

i. General ProvisionsArticle 3515 (residual and general rule)- except as otherwise provided in this book- when an issue in a case has contacts with states other than LA- the issue is governed by the law of the state whose policies would be most seriously

impaired if its law were not applied.o the state whose policies would be most seriously impaired is determined by look at the

strength and pertinence of policies of all the states involved in light of: the relationship of each state to the parties and the dispute the policies and needs of the interstate and international sys

y like policy of upholding justified expectations of the partiesy and minimizing the adverse consequences

- Notes:o Only applies to cases not otherwise provided for and contains the general principles

from which other articles are derived.o Moves away from governmental interest analysis towards comparative impairment

approach.o Adopts issue-by-issue analysis, aka dpecage.

Article 3516 (Meaning of State)- state means the US, any state or territory or possession thereof, DC Puerto Rico, and any other

foreign country

Article 3517 (Renvoi)- except as otherwise indicated (renvoi authorized the law that would be applied by the courts of

the foreign state).- when the law of another state is applicable under Book 4, that law shall not include the COL

methodology of that state. (renvoi excluded)- But in determining the applicable law to an issue under article 3515, 3519, 3537, 3542 (instances

where Book 4 does not expressly designate the applicable law), the COL methodology of theinvolved foreign states may be taken into consideration.

Article 3518 (Domicile)- domicile of a person is determined according to LA law.- A juridical person (such as corporation) may be treated as a domiciliary of:

o The state of its formation oro Its principal place of businesso Whichever is most pertinent to the particular issue.


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ii. StatusArticle 3519 (status of natural persons; general principle)- the status of a natural person and the incidents and effects of that status- are governed by the law of the state whose policies would be most seriously impaired if its law

were not applied to the particular issue- that state is determined by evaluating the strength and pertinence of the relevant policies of the

involved states in light of:o the relationship of each state, at any pertinent time, to the dispute, the parties, and the

person whose status is at issue.o The policies referred to in art 3515o The policies of sustaining the validity of obligations voluntarily undertaken, or protecting

children, minors, and others in need of protection, and of preserving family values andstability.

- cmts:o this article applies to: the validity of marriages that do not fall under art 3520; the effects

and incidents of all marriages and divorces not provided for by art 3522; theestablishment, existence, proof, and contestation of a parent-child relationship (whethersuch relationship is legitimate or illegitimate or created by adoption); and the effects andincidents of a parent-child relationship; the capacity to sue or be sued; the capacity toown property.

o This article does not apply to citizenship (governed by fed law), child custody and childsupport (provided for in specific LA statutes), capacity to make a testament, inherit.

Article 3520 (marriage)- a marriage that is valid in the state where contracted or in the state where the parties were first

domiciled as H and Wo shall be treated as a valid marriage, unless . . .o the marriage violates a strong public policy of the state whose law is applicable under

art 3519.- A marriage b/w persons of the same sex violates a strong pp of LA and if such a marriage in

contracted in another state shall not be recognized in LA for any purpose.- Cmts:

o This article only applies to the validity of the marriage, not the incidents and effects of amarriage. See art 3522.

o Adopts favor matrimonii policy (policy favoring the validity of marriages if there is anyreasonable basis for doing so).

o Article encompasses common-law marriageo Intended to include consideration of the COL of the state where the marriage is

contracted.

Article 3521 (divorce or separation)- a court of LA may grant a divorce or separation only for grounds provided by LA law.- Cmts:

o Art does not extend to other claims or remedies assoc w/ divorce and separation, suchas: alimony, child support, or property settlement. See art 3522. Nor does it apply toaction for the nullity of a marriage. See art 3520 (for validity or nullity attacks).


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o Art applies so long as LA ct has JUR. LA ct has JUR to grant a divorce if, at the time offiling, one or both of the spouses are domiciled in LA.

Article 3522 (effects and incidents or marriage and of divorce)- unless otherwise provided by LA law

o residual article- the effects and incidents of a marriage and of a divorce- are governed by the law applicable to the issue underart 3519.- Cmts:

o Art does not apply to validity issues orthe rt to obtain a divorce.o incidents and effects of marriage means any legal consequence of marriage, such as:

the status and rts of children the rts and duties of spouses during marriage a spouses rts following dissolution of the marriage by death ordivorce.

iii. Marital PropertyTwo issues arise in these cases:- classification of the property as community orseparate and- then the applicable law to distribute it.Article 3523 (movables)- Except as otherwise provided in the title- Rts and obligations of spouses as to movables (whereversituated)- Acquired by eitherspouse during the marriage- are governed by law of the domicile of the acquiring spouse at the time of the acquisition

o Codifies the principle of the prospective mutability of the matrimonial regime, meaningthat the matrimonial regime changes when the matrimonial domicile is moved from one

state to another.

Article 3524 (immovables situated in LA)- Except as otherwise provided in this title- Rts and obligations of spouses as to immovables, situated in LA- Are Governed by the law of LA- Whetherthe immovable is comm. orsep property is determined by LA law, regardless of

domicile at time of acquisition.

Article 3525 (termination of community; immovables of anotherstate acquired by a LA domiciliary)- This article applies only if:

o Immovables are situated outside of LAo Would be classified as community property underLA lawo Were acquired by a spouse, who at the time of acquisition,

Was domiciled in LA and At the time of termination of the community, was domiciled in LA orsubject to

the JUR of this ct.- If the article applies, then LA law applies. If no otherarticle in the title is applicable, then then

article 3523 might apply (residual article of this title).


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- This article may be enforced by a judgment recognizing the spouses rt to a portion of theimmovable orits value.

o E.g. MS may have a rule saying that situs of immovable is controlling. Note that a LAjudgment affecting MS property would probably not appearin a MS chain of title search.So, whateverthe value may be, may entera money judgment in LA and then try toenforce in MS. See cmt d. Makes it hard forone spouse to defraud anotherby hidingproperty in anotherstate. This is a sensitive situation b/c telling anotherstate what to dowith property located in theirstate.

Article 3526 (Termination of community, movables and LA immovables acquired by a spouse whiledomiciled in anotherstate)- Upon termination of the community ordissolution by death ordivorce- when at least one spouse domiciled is in LA at this time- Rts and obligations as to

o Immovables in LA ando Movables, whereversituatedo acquired during the marriage by spouse domiciled in anotherstate

- Shall be treated as follows:o Property classified as comm. property underLA law shall be treated as comm. property

underLA law ando Property not classified as comm. property underLA law shall bet treated as separate

property of the acquiring spouse. However, the non-acquiring spouse shall be entitled,in value only, to the same rts to this property granted by law of the state in which theacquiring spouse was domiciled at the time of acquisition.

- Cmts:o This article only applies if property, whethermovable orimmovable, acquired during the

marriage by acquiring spouse while domiciled in anotherstate.o Referred to as the fourth approach. See p. 408 in text. (apply forum states

classification rules, if all community property then apply forums distribution rules; ifsome of the property is separate property, the apply the distribution rules of the statewhere the acquiring spouse acquired the assets).

o Cmt g, as to inheritance rts, surviving spouse doesnt inherit herhalf of the comm.property, it is already her1/2.

Article 3527 (LA immovables acquired by a spouse while domiciled in anotherstate; death ofacquiring spouse while domiciled in anotherstate)- Upon the death of a spouse domiciled outside LA- That spouses immovables in LA acquired while outside of LA- Which are not comm. property underLA law- Are subject to the same rts, in value only, in favorof the surviving spouse as provided by the law

of the deceaseds domicile at the time of death.- Notes:

o This is the one concession to anotherstates law w/rto immovables located in LA, Abilityto defraud spouse is lessened underthese circum.

iv. SuccessionsArticle 3528 (formal validity of testamentary dispositions)


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- a testamentary disposition is valid as to form if:o in writing // La doesnt recognize oral orvideo willso and in conformity with:

law of LA law of making at time of making

y in case state changes its law law of the state where testatorwas domiciled at making orat death

y death clause b/c priorwill is revocable until death if immovables, apply the whole law of state where is immovable is located.

y adopts renvoi- Whetheran issue is an issue of form is determined by LA law. See cmt a.Article 3529 (capacity and vices of consent)- a person has capacity to make a will if, at the time of making the will:

o he had capacity underthe law of his domicile at the time of making his will orat death.- If capacity in both states, will should be held free ofvices if at least one of those states says it is

free ofvices.- If only one state recognizes his capacity, the will should be free ofvices if so held underthat

states law.- Notes:

o Whetheran issue is an issue of capacity is determined by LA law. Capacity: sound mind, not a minor Art doesnt apply to handicaps such as blindness, deafness, orilliteracy

Article 3530 (capacity of heirorlegatee)- capacity orunworthiness of an heirorlegatee is determined by law of the state where the

deceased was domiciled at his death.- But if immovables in LA, legatee must qualify as a person underLA law.- Cmts:

o This law doesnt apply to issue of who should inherit.Article 3531 (interpretation of testaments)- meanings of words and phrases used in a will are determined by the law expressly said to be

adopted orthe law clearly contemplated by the testatorat the time of making.- If no express orimplied selection is made, the law of the state where the testatorwas domiciled

at the time of making the will applies.

Article 3532 (movables)- except as otherwise provided in the title- testate and intestate succession to movables is governed by the law where deceased was

domiciled at the time of death.- Cmts:

o When a particularissue does not qualify as form, capacity, orinterpretation, underart3528-3531, the issue will be decided underthis article. This is the general and residualrule formovables.

Article 3533 (immovables situated in this state)- except as otherwise provided in this title


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- testate and intestate succession to immovables in LA is governed by LA law.- Forced heirship law shall not apply if the deceased was domiciled outside of LA at his death and

left no forced heirs domiciled in LA at his death.o When a particularissue does not qualify as form, capacity, orinterpretation, art 3528-

3531, the issue will be decided underthis article. This is the general and residual rule forimmovables.

- Note: the cmts to this article are not accurate anymore; they contradict the text of the article.Article 3534 (immovables situated in anotherstate)- except as provided otherwise provided in this title- testate and intestate succession to immovables in anotherstate is governed by the whole law

of that state.o Renvoi applies

- If deceased died domiciled in LA and left at least one forced heirdomiciled in LA at the time ofhis death, then the value of the immovables shall be included in calculating the disposableportion and in satisfying the legitime.

o So include the value of the foreign immovable in the fictious mass of the estate used tocalculate the FHs disposable portion and to satisfy the FHs legitime.

v. Real RightsReview the terminology used in this title:- Real rights are rights in a res, not a person- Accessoryright is like the right of mortgage, accessory to the right of ownership- Principal right is right to ownership- Also, the right of usufruct (a personal servitude, b/c held by a person, and a real right).

Servitudes held by an estate, a res, are called prevail servitudes. Dont be confused b/c usufructis personal, it is nonetheless a real right forpurposes of this title.

Article 3535 (real rights in immovables)- Real rts in immovables situated in LA are governed by LA law.

o Situs controls the choice of applicable law fundamental proposition has not changed,but what has changed a little bit and the cmts address (esp successions, testaments) isthat doesnt coverevery aspect of the law.

- Real rts in immovables situated in otherstates are governed by the laws that would be appliedby the cts of that state.

o Accept renvoi explicitly said in the article (that would be applied). So, apply otherstates COL principles.

o E.g. When LA dom asking a LA ct to decide real rts in immovable property locatedsomewhere else. And LA ct is directed to applyMI COL principles and the chosen sublaw.

- Whethersomething is an immovable is determined by the substantive law of the state where theproperty is located.

o Reject renvoio Interestingly, how do we determine whethera right in a thing is a real right? By LA law,

regardless of where the property is located. See cmt a.- Cmts:


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o Hypo: property in MS, LA may have personal JUR of the parties, but LA will probablyhave very little interest, as compared to MS.

o When is second paragraph implicated? When LA dom asking a LA ct to decide real rts inimmovable property located somewhere else. And LA ct is directed to applyMI COLprinciples and the chosen sub law.

Article 3536 (real rights in corporeal movables)- Real rts in corporeal movables are governed by the law of the state where the movable was

located when the real rt was acquired.o Rememberthe Victoria Ford case, corporeal movable at issue, this rule reflects actual

outcome of the case. TX law applied b/c rt acquired in TX.- Exceptions in paragraph two:

o If movable removed to LA aftera real rt is acquired in anotherstate, then LA law appliesif:

The rt is incompatible w/ the law of LA (i.e. LA doesnt recognize the interest inproperty on pp grounds most likely) or

The holderof the rt knew orshould have known of the removal to this state or Justice and equity dictate that in orderto protect 3P, who in GF, have dealt w/ the

thing afterits removal to LA.- Cmts:

o What is a corporeal movable? a physical movable has a corpus. Forincorporealmovable, apply article 3515. See cmt a.

vi. Conventional ObligationsArticle 3537 (general rule)- Except as otherwise provided in this title- issue of conventional obligations is governed by law of state whose policies would be most

seriously impaired if its law were not applied to that issue- determine that state by evaluating the strength and pertinence of the relevant policies of the

states by looking at:o pertinent contacts of each state to the parties and the transaction (place of negotiations,

formation, performance, location of the object of the contract, domiciles, residence,business of the parties)

o nature, type, and purpose of the contracto policies referred to in article 3515 (general COL rule) and policies ofpromoting multi-

state commercial intercourse, and protecting one party from undue imposition by theother

- cmts:o allows parties to write law between themselveso if didnt choose law, may have to supplement with leg COL hereo this article will be superceded by more specific articles laterin the titleo lexcausae: thesubstantivelaw that would bechosen by going thrutheCOL rulesof the

forum, liketheanalysisin art 3537.

Article3538 (form)- contract is valid in form if in conformity with:

o the law of the state of its making or


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o the law of the state ofperformance oro law of the state of common domicile orplace of business of the parties oro the law governing the substance of the k underarticle 3537 (by ct analysis) or3540 (law

chosen by the parties).- Nevertheless, if forreasons ofpp, the law governing the substance of the k underarticle 3537

requires a certain form, then there must be compliance with that form. (explained in detail in cmte)

o An exception in favoroflex cause, which isvsthe rule ofvalidation.o E.g. A k complies with the place of making but not with the law where it is to be

performed would be valid underthe first paragraph of this article. But, if undertheprinciples of art 3537, the law of the latterstate would be the law applicable to thesubstance of the k, and if that state would invalidate forreasons ofpublic policy, thenthe contract must be declared invalid underthis second paragraph.

- Cmts:o rule ofvalidation here, more to validate than invalidate, lots of choiceso who decides if issue of form implicated?

Determined by the law of the forumo Note w/respect to testaments will see the rule ofvalidation again

Article 3539 (capacity)- a person is capable of contracting if meets the capacityreqs under:

o the law of his domiciliary at the time of making the ko the state whose law is applicable to the k underarticle 3537.

Article 3540 (party autonomy)- all otherissues (otherthan capacity orform) of conventional obligations are governed by the law

o expressly chosen or express - literally declared in the k

o clearlyrelied on by the parties implied - look at cirum surrounding, the provisions of the k (says servitude, must

want LA law to apply), orthe conduct of the parties- as long as the law they chose doesnt violate the lexcause, i.e. the public policy of the state

whose law would otherwise be applicable underarticle 3537.- Cmts:

o What if k said this ks interpretation should be governed by laws of DE? orgovernedby laws of DE? Difference b/w interpretation and governed by?

Not really? But doesnt necessarily mean that DE COL rules would be appliedo Presumption is that parties only meant to choose the substantive law of the state not the

COL principles of otherstate, unless expresslyprovided, i.e. apply DE law and DE COL

principles. Presume they wanted to avoid renvoi. Ifput COL paragraph in k, apply DE law, excluding/including DEs COL

principles. //procedural and substantive DE law and then also DE COL laws Very important to expressly say ifyou want the states COL principles to apply

o Parties underthis article may engage in a private dpecage, declaring certain laws forcertain issues.

o Know that choice of forum doesnt necessarily mean that parties have agreed to applythat forums law. Not absolutely certain the forum would apply theirlaw.


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o How do you know the public policy of the state? Look at precedents, statutes sometimesexpressly state

o This article adopts some of the provisions of the Restatement (Second) 187, which iswidely adopted in the CL states. LA, however, does not adopt the substantialrelationship req of 187.

o Legal advice: if dont want the chosen law in the k to apply, even though you agreed to it,argue that the duty breached does not arise out of the k. But be aware that commercialsavvy companies with equal bargaining powerin a k will be held to a higherstandard.Also, as to a law that might change, put in k, apply LA law as it was in 2005.

Article 3541 (otherjuridical acts and quasi-contractual obligations)- unless otherwise provided by the law of this state,- the law applicable to juridical acts otherthan contracts and to quasi-contractual obligations is

determined in accordance with the principles of this title.- I.e., if anothertitle provides COL, fore.g. successions, marital property cases, etc., then apply

those articles instead.

vii. Delictual and Quasi-Delictual ObligationsArt 3542 (general and residual rule)- except as otherwise provided in this title- these issues are governed by the law of the state whose policies would most seriously be

impaired if its laws were not applied.- That state is determined by evaluating the strength and pertinence of the relevant policies of the

involved states in light of:o Pertinent contacts of each state to the parties and the events giving rise to the dispute

Place of conduct, injury, domicile, habitual residence, place of biz, state whererelationship was centered

o Policies of art 3515, policies of deterring wrongful conduct, and policies ofrepairing theconsequences of injurious acts.

- Notes:o Relation to otherarticles

Articles 3543-3546 should prevail overthis general and residual rule, unlessthose rules produce a result inconsistent with the objective of this article.

Art 3547 contains an escape clause which, when applicable, refers such casesback to Article 3542.

Art 3543 (conduct and safety issues)

- issues pertaining to conduct and safety governed by the law of the state whereo the injury occurred

orif injury in otherstate, otherstate did not provide a higherstandard of conducty e.g. neg perse vs. ordinary negligence

o and where the conduct occurred- in all othercases, but those in paragraph one (state of injury has higherstandard of conduct),

governed by law whereo injury occurredo provided that the tortfeasorshould have foreseen the occurrence of the tort in that state


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if not foreseeable underobjective test then residual art 3542 applies.o and tortfeasorwas not a LA dom orhad anothersignificant connection with LA

- Louisiana law applies ifo The injurious conduct occurs in LAo and tortfeasoris domiciled in LA orhas anothersignificant connection with LA.

- Notes:o Conduct in more than one state: look at principles of causation of the law of the forumo Injuries in more than one state: look at where primarily suffered.o Not provided cases may evoke the escape clause of Art 3547 orthe residual clause of

3542.

Art 3544 (loss distribution issues)- limited to issues b/w victim/successorand actor, doesnt include issues of indemnity, liability of

ins cos., people vicarious liable- if tortfeasorand injured person domiciled in the same state, despite the fact that injury and

conduct occurred somewhere else.o Law of the place of the domicile applieso if laws are exactly identical, then persons treated as be domiciled in the same state, its a

fiction that allows us to use this rule. Doesnt matterwhich states law we apply then.- if domiciled in different states

o If injury and conduct occurred in one state, then the law of that state applies.o But injury and conduct occurred in different states, the law of the state of the injury

applies, if: The injured person domiciled there and The tortfeasorcould have foreseen the injurys occurrence in that state and The higherstandard of financial protection in that state

o See Bernard (CA chose to protect its residents, NV tavern ownercould have foreseen theCA residents being injured in CA, there was a higherstandard of financial protection inCA).

o Remember, if all three factors are not met forsplit domiciliary issue, then ct has to lookat art 3542, and if no answerthen art 3515, if answernot in art 3544.

Art 3545 (products liability)- Liability forinjuries and damages (compensatory, special, punitive) is governed by LA law,

when:o The injury occurred in LA and victim was domiciled ora resident of LA oro The product was manufactured, produced, oracquired in this state and caused the injury

to a LA domiciliary, eitherin LA orin anotherstate Alternative interpretation would be caused the injury in LA orin anotherstate to

LA domiciliary. Comments are inconsistent.- Provisions do not apply ifproduct was not available through the ordinary commercial channels.

o Allows fora foreseeability defense forthe D.- If do not fit this rule, look to the otherarticles of the title.- Notes:

o If applicable, this article applies to conduct and safety issues, loss distribution issues.o Here, more specific rule underthe title that prevails overarticles 3543-44.


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Art 3546 (punitive damages)- most controversial article in the entire bill, reason it did not initiallypass, b/c business interest in

the LA leg wanted a rule that would have a LA forum always reject PD if multi-state case.o LLI argued that not talking about app of sub law, want a mainstream COL position, which

would be permit award of PD only underlimited circumo Business interests argued that civil law doesnt recognize so shouldnt recognize in

multi-state circum- PD authorized only if:

o Allowed by law of state where injurious conduct occurred and By the law where the injury occurred or By the law where the tortfeasoris domiciled

o OR By law where injury occurred and by the law where the tortfeasoris domiciled.- Notes:

o Remember, focusing on tortfeasor, ratherthan victim.o Ifpunitive damages are not recoverable underthis article, note that the denial ofpunitive

damages might so impairthe policies of anotherstate such that the principles of art 3542would be defeated. In such cases, art 3547 may deem that punitive damages be awardedby evoking the escape clause.

Article 3547 (exceptional cases)- articles do not apply if look at the TOC- underprinciples of article 3542- submitted to discretion of court to apply the law of the impaired state- if the policies of anotherstate would be more seriously impaired if its laws were not applied to

the particularissue, in such a case the laws of the otherstate would be applied.- note: as counsel, if dont like 3543-46, have judge look to 3547, argue yourcase is an exceptional

case.- Highly criticized article b/c afterlaying down the law, allow judges to do whateverthey want.- W/respect to punitive damages, PD articles comments say it is subject to article 3547, exception

clause. Might not need all three components orPD might not be appropriate despite existent ofall three components.

- BOP of whetheran exceptional cases exists is on party evoking the escape clause.Article 3548 (domicile of juridical persons)- Forpurposes of this title- juridical person (non-natural persons, like corporations) domiciled outside of LA who transacts

biz in this state and commits a tort arising outing of that biz, then person should be treated as aLA dom.

o ifyou do biz here and commit a tort arising out of that biz, then you become and aretreated as a LA domiciliary forpurposes of this title

- very important article, in many ways, articles 3547-48 are most important and manypeople skipthem.

- no min. level of biz transactions needed.- Escape clause does not apply to this article.

viii. Liberative PrescriptionArticle 3549 (law governing liberative prescription)


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- if LA substantive law is applicable to the merits of the action, then LA prescription andperemption laws apply.

- If substantive law of anotherstate is to be applied to the merits of the action in LA, LAperemeption and prescriptions laws still apply, unless:

o the LA SOL is shorterand chosen state has longerSOL permitting the action andapplication of otherstates longerSOL is warranted by compelling considerations ofremedial justice forLA to still hearthis case OR

What are compelling considerations ofremedial justice?y Maybe P could no PJUR overD in otherstatey Maybe J in otherstate not enforceable in LA.y But shouldnt allow suit, b/c youre the only suit left. Inquire into whether

the plaintiffprocrastinated.o If otherstates SOL is shorterthan LAs SOL and denies the claim, apply otherstates

SOL if action in LA: is not warranted by the policies of LA, LAs relationship to the parties orthe

dispute, orany compelling considerations ofremedial justice.- Cmts:

o Why SOL provisions? Want to provide a forum, but know that EV goes stale, thus qualityof justice goes down as time passes.

o liberative prescription (general statute w/ time period; can be interrupted) vs. peremption(cant be interrupted, like CL statute ofrepose)

o covers all species ofprescription, except foracquisitive prescriptiono art 3549 is a hybrid of both borrowing and non-borrowing statutes.

Borrowing statute: statute passed by leg that basically states, if applying thesub law of antherstate, then also borrow theirSOL, too.

Non-borrowing statute: if ourstate has a shorterSOL, and you apply anotherstates substantive law, then dont borrow the otherstates SOL. Prevents forumshopping forthe state with the longest SOL.

o Changes to 3549. Act 213, eff 6/29/05. If the sub law of anotherstate would be applicable in LA and the action is

brought by a person not residing ora domiciliary of LA, the action shall be barredif it is barred by SOL orSOR of the otherstate and the law is deemed to besubstantive, ratherthan procedural.

ix. Class actions (not in Book 4, but discussed in lecture)- Class actions and choice of law issues:

o Class action is procedural device having purposes ofreaching final decision that can actas res judicata to named persons and otherpersons not made parties to the action.

o If class action properly certified, then going to choice the law forclass representativesthat you would choose if they were individuals, so nothing magical about COL issues aredetermined, the same as if it was just the named class rep and the defendant.

o Note, ct may be able to deny class certification if COL issue would be too complicated.B. CONSITUTIONAL LIMITS ON CHOICE OF LAW

i. What is the scope of a states legislative jurisdiction1?1. Due Process Clause

1Includes both CL as well as statutory rules.


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a. Dick (J/DP violation, b/c of inSUFF contacts w/ TX. P, a Texan res who was assigned an inspolicy while temporarily living in Mexico, filed suit vs D, a NY reinsurance corp., in TX ct torecoverfordamage to a tugboat. The policy had been issued in Mexico by a MX co. to a MXnational. D argued that 1yr. SOL provision in the ins k had expired. P argued that the ins kterm was invalid undera TX statute forbidding SOL shorterthan two yrs.) TX-CT rejected NYs con challenge that application of the law was a violation of DP. SCT reversed holding that TX had inSUFF contacts with the ins k so application of TX law

to the D violated its DP rts.

The making of the policy occurred in MX, making of k ofreinsurance occurred inNUY, Ps res of TX was insignificant.

2. Full Faith and Credit Clausea. Alaska Packers (J/no FFC violation. SCT upheld an award of compensation a CA ct had

awarded a non-resident alien. The non-res had been hired in CA forwork in Alaska and waslaterinjured in Alaska. D argued that CA must give FFC to an Alaska law stipulated as the COLin the non-ress employment k.) The court balanced the competing governmental interest and concluded that CAs interes

was greater. Therefore, CA was not bound to apply the Alaska statute b/c of the FFC. Notes: Pacific Employers (if a state has leg jur, i.e. a substantial interest in the dispute,

then its not required to yield that to anotherstate b/c of the FFC clause). Note, however, a ct must give FFC to a judgment ordered by a ct of anotherstate.

3. The Courts Current Approach (Allstate/Shutts/Wortman)a. Allstate (J/No DP orFFC violation, b/c significant contacts w/MINN. WI resident gets in car

accident in WI and dies, deceased worked in MINN, on day of accident not doing anything inconnection w/ work. Afterdeath, deceaseds surviving wife moved to MINN, married MINN res

and appointed admin of deceaseds estate byMINN ct. Deceased had three different uninsurepolicies, i.e. pd three separate premiums. Each policy was worth 15k. Wife sued D seeking 45kin benefits she wanted to stack the policies. MINN law permitted stacking and WI law didnt) Test forlegislative jurisdiction: Con requires that a State must have a significant contact

orsignificant aggregation of contacts, creating state interests, such that COL is neitherarbitrary norfundamentally unfair(look at fairness, surprise, expectations). Test can besatisfied with very minimal contacts.

FFC will not be used as the basis of a uniform orfed COL sys. MINN had significant contacts b/c the deceased had worked in MINN, ins co. did biz in

MINN, and P had moved to MINN. Before filing suit. Therefore the ct held there was no DPorFFC violation.

Brennan-plurality suggests that any time a state has some connections with a problem, ithas leg jur, even when the contacts are unrelated to the COL issue.

Concurring-Stevens: thinks FFC and DP clause impose separate constraints on the ctsand should be examined separately.

DP requires that an arbitrary orfundamentally unfairCOL would violate DP, which hethought didnt occurhere b/c a lot of states have stacking statutes.

If a COL threatens the fed interest in national unity then it violates the FFC.b. Shutts (J/Uncon COL, b/c not enough significant contacts. A class action was brought in KS

state ct by lessors of gaslands in KS vs D and otherlesses forinterest allegedly due on royalt


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payments. Fewerthan 3% of the Ps and 1% of the leases had a connection w/ KS. KS ctapplied KS law to all parties to the suit.) Rehnquist stated that Con is only implicated if there is true conflict in the COL. Also, reaffirmed Allstate rule in majority opinion, stating that a State must have significan

contact of significant aggregation of contacts, creating state interests such that COL isneitherarbitrary norfundamentally unfair.

Ultimately, KS lack of interest in claims unrelated to the State led the ct to conclude thatapplication of the KS law to every claim in the case was arbitrary and unfairand violatedthe Con.

Ct now accepts the tests underthe FFC and DP as the same. Cant use a procedural vehicle, such as class action suit, to prevent a ct from applying th

appropriate COL.c. Wortman (J/No DP orFFC violation, b/c of tradition and history. This litigation involved the

same problem ofpayments forgas royalties as in Shutts, but at issue here was the applicablestate of limitations. KS had applied its SOL of 5 yrs, even though most of the Ps claims woulhave been time-barred if brought somewhere else. KS ct reasoned the SOL issue was aprocedural issue, therefore, it was free to apply its own law.) As to the FFC challenge, Scalia found that the Con did not regard SOL as substantive, bu

ratheras procedural restraints created by each JUR fortheirown cts. Therefore, the KS cdid not violate the FFC when it applied its own SOL.

As to the DP challenge, he stated that the forums application of its own SOL was well-established at the time the 14A was adopted. Tradition and lack of surprise, therefore,validated the application of the forums SOL period.

This case emphasizes the need to use history in making con inquiries. A practice will notviolate DP if it has a solid historical base and it has not been widelyrepudiated.

ii. A States Obligation and Right to Provide a Foruma. Hughes (J/WI could not keeprefuse to heara case b/c the COA arose underIL law. F:

Deceased was injured in IL and administratorbrought action in WI. WI wrongful death statuteonly finds those actions where the injuries occurred in WI as actionable forWD.) A forum cannot refuse to heara case simply b/c it is based on foreign law. Such a refusa

violates the FFC. It may howeverrefuse to heara case based on the principles of forumnon conveniens.

b. Tennessee Coal (J/FFC does not prohibit GA from enforcing a COA created underan AL law,which states the COA may only be brought in AL. RR engineerinjured due to defect of traincain AL. He brought suit in GA based on AL law. RR argued that anotherAL law said that actionunderthe law P wanted applied, must be brought in AL and not anywhere else, i.e. a localizingstatute.) A transitory COA can be maintained in anotherstate even though the statute creating the

COA provides that the action must be brought in local domestic cts. Notes:

States do sometimes enjoin litigation in otherstates. This does not violate the FFC.Cole

c. Nevada (J/CA does not have to give FFC to NV law, simply b/c the state of NV is being sued.NV employee neg hit plaintiffs in auto accident in CA. P is a CA dom. D is res of NV. NV lawstates that EE liability is limited to 25k. CA law imposes no such limit on liability.)


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SCT finds that there is nothing in fed Con that keeps CA from being able to sue the stateof NV underits own laws. In effect, the FFC orprinciples of sovereign immunity do notrequire that CA apply NV law, ratherthan CA law.

A state may heara claim vs a sisterstate.iii. Privileges and Immunities, Equal Protection and the Commerce Clause as Limits on COL

a. Discrimination Privileges and Immunities Clause requires that states grant to citizens of otherstates all

the privileges and immunities it grants to its own citizens. Commerce Clause prohibits discrimination vs interstate orout-of-state biz activity. Equal Protection Clause

b. Undue Burdens on Interstate Commerce Commerce Clause Due Process Clause

C. CHOICE OF LAW IN FEDERAL COURTSi. State law in Federal Court

1. The Rules of Decision Act: laws of the several states, except where the Con (i.e. the Supremacyclause) ortreaties of the US orActs of CG otherwise require orprovide, shall be regarded as rulesof decision in civil actions in the cts of the US, in cases where they apply.a. So, if there is preemptive fed law on point it appliesb. Primarily talking about diversity JUR cases

2. Swift (if there is no state statute on point and the matterinvolved an area of general ratherthanlocal law, then the RDA did not apply and the fed cts were free to develop theirown federalcommon law rules).

3. Eerie (In a div jurcase, the fed ct is required to apply the substantive law that would be applied(implicates that it might apply the COL of the otherstate as well) by the highest court of the state iwhich it sits.)a. So, if highest ct hasnt spoken on the issue, fed ct must make an Eerie-educated guess. Might

look at state COA decisions to see how state supreme ct would decide.4. Guaranty/Byrd/Hanna

a. Guaranty (According to the Outcome-Determinative Test, a fed ct must apply state law to anyissue that could affect the result of the action. Here, a fed ct in a div JUR case must apply thestate SOL in an equity action).

b. Byrd (Ct applied three prong balancing test in which it considered: (1) whetherthe state rulewas bound up with state-created rts and obligations, (2) the fed interest in applying a fedrule, and (3) the effect on the outcome). This case expanded upon Guaranty.

c. Hanna (in the absence of a Fed Rule of Civ Pro orpreemptive fed law, if the failure to apply astate rule in fed ct would be viewed as so significant that they would choose theirforum onthat basis, then the fed ct should apply the state rule; didnt apply Byrd analysis).

5. Gasperini (in applying federal law, looked at countervailing fed interest; in effect employed acomponent of the Byrd analysis, reviving the case).

6. Federal Rules of Civil Procedurea. Promulgated by the SCT pursuant to the Rules Enabling Actb. Fed Civ Pro Rules govern in fed ct

ii. Eerie and Choice of Law1. Klaxon

a. A fed ct is required to use the COL methodology of the state in which it sits in div JUR case


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b. SCT could have begun to create some foundation fora fed COL methodology in this case, butchose to default to the States.

2. Transferwithin the Federal Systema. Transferee court is required to apply the law the transferorcourt would have applied.

3. Stewart (J/Fed transferstatute applied . Initial action brought in AL fed ct, D asked that the case btransferred to NY fed ct pursuant to a forum selection clause orforimpropervenue. AL denied themotion stating that the motion was controlled by AL law and the AL looks unfavorably to forumselection clauses)a. When a fed statute arguably conflicts with a state law, if a fed statute in on point, then it

prevails, if it represents a valid exercise of CGs auth underthe Con.

iii. Federal Common Law1. Although there is no general fed common law, fed CL does govern matters upon which there is no

fed statute orstate law, in areas of unique fed interests (Boyle govt contractordef).2. RDA permits, last clause . . . in cases where they apply allow fed CL to apply.3. Supremacy Clause requires that fed cts and state cts apply fed CL regardless of state law4. CG may overrule5. Fed CL can provide basis forarising under JUR

D. CHOICE OF LAW IN THE INTERNATIONAL ARENAi. Conflicts between Federal Law and Foreign Law

1. Lauritzen (J/Danish law applies. Danish seamen hired in NY and eventuallyreturned there, isinjured on a Danish ship while in Cuba and brings COA in US underbroadly applicable Jones Act.I: WhetherUS statute should be applied to maritime tort? Danish law benefits less attractive thanUS law benefits.)a. Discuss several factors:

Place of the injury need predictability, so this rule is not applicable to maritime PI cases Law of the flag weigh heavily in favorof Denmark Dom of the Injured NY presence transitory Dom of Shipowner Dane Place of k NY, ct dismisses as not substantial factor Inaccessibility of foreign forum not disadvantaged by Danish law Law of the forum not significant contacts

2. Hartford Fire Ins. (J/ Sherman Antitrust Act does apply. Ps allege that Ds-English ins. Cos. weretrying to coerce insurers in the US to offerCGL coverage and to limit coverage. Ps sought to havethe Sherman Act, which makes conspiracies in unreasonable restraint of interstate of foreigncommerce illegal, apply. Here, Ds conspired to affect the Amx ins mkt.)a. Well established that the Sherman Act applies to foreign conduct that was meant to produce

and did in fact produce some sub effect in the US. This is the effects doctrine.

b. CG has con auth to regulate conduct occurring outside the US.c. Despite the fact that England has established a comprehensive regulatoryregime overthe

London in mkt and the alleged misconduct is not illegal underEnglish law, does not bartheapplication of US antitrust laws even if the foreign state has a strong policy to permit orencourage such conduct.

d. Scalia-dissenting: The extraterritorial reach of the Sherman Act, in effect the leg JUR of CG,must be interpreted undertwo canons of statutory interpretation (1) leg of CG, unless acontrary intent appears, is meant only to apply w/in the US, and (2) an act of CG should not beconstrued to violate the laws of anothernation if anotherpossible construction is available.


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Ultimately, he finds that the conduct involved here did not fall within the intended reach ofCGs leg auth here.

e. Notes: If a US fed statute expressly makes it applicable to foreign conduct, then the prevailing vi

is that the ct must apply it to such conduct even if the application would violate internatiolaw.

In the absence of such language, a ct must define the extraterritorial reach of fed statutessilent on the issue of extraterritorial reach. Perhaps, applying Scalias canons.

ii. Constitutional Limitations on State Action in the International Area1. American Ins. Assn (J/Fed policy stated in the GFA preempted the CA law. Pres and German gov

entered into the German Foundation Agreement to provide forHolocaust victims. CA created astatute forcing insurers to pay the claims of Holocaust survivors. Ins cos. filed suit forinj reliefvsthe CA ins commissionerchallenging the constitutionality of the CA statute. Ps argued, as topreemption, that the CA statute interferes with the foreign policy of the Executive branch, which isexpressly stated in the GFA. The US policy was expressly stated in the GFA, but there was noexpress preemption clause.)a. I: Can an agreement entered into by the US preempt a state law based on a US policy expressl

stated in the agreement that conflicts with the state statute, in the absence of anypreemptionclause in the agreement?

b. A state law must yield to the exercise of the fed executive authority when the policies of thetwo clearly conflict. Here, CA has adopted a harsherpolicy than that of the US in pursuingHolocaust claims.

c. Conduct of foreign affairs is entrusted underthe Con to the National Government.d. Notes:

Supremacy Clause provides that a state law must yield to the Con, fed laws, and treaties,says nothing about fed policies.

Zschernig (Us foreign policypreempted OR statute, even though the statute was on a subreserved to the states, the fed policy was not expressed in any document, and fed govtformally stated hat the OR statute did not interfere with the conduct of foreign affairs.)

Foreign Commerce Clause: gives CG the powerto regulate commerce with foreign nationrestricts states from affecting foreign commerce more than it restricts states form affectininterstate commerce.

iii. Conflicts between State Law and Foreign Law1. DAgostino (J/NJ interests outweigh Swiss interests, so NJ law applies. P-US citizen dom in Switz

Worked fora Swiss subsidiary of J&J-NJ dom. When P refused to allegedly bribe a Swiss officialhe was fired. He then filed a wrongful termination suit in NJ alleging that J&J orchestrated boththe bribe and his firing forfailure to pay the bribe, conduct which is prohibited by the FCPA, a fed

statute, which has been incorporated in to NJ state law. J&Js actions would not violate any Swislaws.)a. The ct must apply the law of the state with the greatest interest in governing the particular

issue. Qualitative, not quantitative, contacts are determinative..b. I-1: Does the FCPA constitute a state policy? Yes, FCPA has been incorporated by NJ law by

NJ precedents/c. I-2: Which state has the greaterinterest as to the issue of whetherJ&Js actions were

prohibited orallowed? Ct employed governmental interest analysis.


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Switz. has interest in governing employment relationships b/w a Swiss co. and SwissEE. But J&J had an extensive supervisoryrole in the employment.

As to NJ, J&J orchestrated in NJ the bribing of a foreign official, so conduct at issueoccurred in NJ. The ct found this contact to be qualitative and ultimately found thatNJ governs the issue.

Federal policy can apply extraterritorially when CG intends that the policy have overseasapplications.

II. RECOGNITION OF JUDGMENTSA. RECOGNITION OF SISTER STATE JUDGMENTS

i. Res Judicataa. Claim preclusion means res judicata (= things adjudicated). But res judicata is sometimes use

forboth CP and IP. E.g. Ms. Rushs claim fordamage to hermotorcycle and herPI (a broken leg). She had th

opportunity to litigate herclaim forproperty damage to the motorcycle. So, she cantrelitigate again. Some jursay the claim has been merged in the judgment

Claim forbroken leg arises from the same occurrence ortransaction, most jurwould barPI claim as well. Recall cant say that it has achieved the res adjudicata status b/c neverbefore the ct, but not before the ct b/c failed to ask the ct to adjudicate it, but some cts bathis claim b/c of judicial efficiency. So barthose claims brought and those that could havbeen brought.

Same rule forcounter-claims orreconventional demands, i.e. manadatoryreconventionademands. All fall within CP.

Now, Mr. Rush has been waiting on the sidelines to see if city will be held liable. Mr. Ruswill try to litigate and say that he has a betterlawyerand wants his day in ct. No CP.

Lets sayMs. Rush prevailed and showed city was neg. Might have IP. H might want to uherJ to show neg. Want to show J form collateral proceeding (why its collateral estoppeCity could use same arg, but H will still make arg he was not a party to the priorsuit.

b. Collateral estoppel means issue preclusion. Offensive collateral estoppel sued by the P //Mrrush uses Ws J Defensive collateral estoppel used by the D. //City uses priorJ. Mutual collateral estoppel were a party to the priorjudgment; had a mutual interest, mig

get to use the outcome. Nonmutual collateral estoppel no mutuality ofrisk; like H in first suit; not a party to the

priorjudgment.c. Effects of judgments

b/w two parishes LA leg can prescribe how judgments are treated within its state

b/w two states state doesnt have auth to prescribe effect of its judgments in anotherstate auth comes from FFC which states that states must enforce the judgments of other

states.

28 USC 1738 (FFC statute): state is required by fed statute to give J the same force athe ct that gave J would give it, so enforcement ct must act like the act who renderedthe J. What would same judge who rendered the J do?

whyres judicata? Judicial efficiency


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ii. FFC to Interstate Judgmentsa. ForFFC to apply, J must be valid/fair, final, and on the merits.

Had pjur. Smjur; i.e. no defects in auth of the priorct to renderthe J. So, enforcing ct is entitled to considerand parties can raise the validity of the jurof the p

ct; if lost, want to argue that priorct did not have jur.b. Why is SCT more rigorous in its application of the FFC as to judgments ratherthan as COL

(more lenient)? judicial efficiency

once a matterhas proceeded to a final result, it is judicially efficient to avoid doingthat anywhere else.

So long as we can reassure it was fair, final, and on the merits. More latitude when proceeding is still in the process of being decided ratherthan when it

finalized. Respect state sovereignty - federalism; ideas of comity.

c. Fauntleroy (J/FFC requires that Mississippi enforce the J ofMissouri. Missouri judgmentbrought forenforcement in Mississippi. Original COA arose in Miss. out of gamblingtransactions, which is illegal in Miss. Loserof transaction failed to pay. Went to arbitration anJ rendered vs the D, issue of illegality of the transaction was not brought up. Upon finding theD in Missouri, the P brought suit to enforce the J in Missouri. Back in Miss., the ct and Miss.SCT refused to recognize the Missouri judgment, b/c transaction was illegal and Mississippilaw said that such ks should not be enforced by any ct. Ct interpreted the statute as removingjurfrom the Mississippi ct.) I: Can Mississippi leg to the point that establish an exception to the FFC? H: SCT holds that Mississippi should have to enforce the Missiouri J b/c of the FFC claus Dissenters argue Mississippi should not have to enforce a judgment enforcing a k that wo

be illegal underMississippi law. Note: Should have brought up illegality in arbitration orin ct proceedings in Missouri.

d. Yarborough (J/ FFC requires that SC recognize the GA J . Minorbrought action in SC vs fatheto require herfatherto provide forhereducation and maintenance. JUR overdad by way of inrem, property owned by fatherin SC. Fatherwas a res of GA and argued that a priordivorceagreement decreed by a ct in GA fixed the amt to be pd the daughterand had been pd. Dasked that SC ct to recognize the GA J. P argues that GA ct did not intended to relieve thefatherof future liability, she was not a party to the GA suit, as a minorshe was not a res of GAwhen the J issued, and she is a SC res.) H: FFC reqs that SC recognizes the GA J.

e. Thomas (J/P was allowed to receive WC in two JURs FFC did not preclude successive WCawards. DC res injured while working in VA, goes to VA Commission and gets a remedy, goesto DC sys seeking additional benefits. D argued that VA award excluded any otherrecoveryand DC must give VA J FFC. Judge found that VA award precluded recovery in DC, but that

there might be more recovery underVA law. P was awarded permanent disability. 4th Cir.reversed finding the FFC prohibited the compensation furtherawarded by the DC ct.) H: State has no legitimate interest in preventing anotherState from granting a supp

compensation award when that second state would have had the powerto apply its WCstatute in the first instance. FFC should not be construed to preclude successive WCawards.

Neitherof the PRECs, Magnolia orMcCartin, is overruled b/c plurality opinion. Is it fairto say Thomas is an exception to the FFC statute?


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Yes, b/c WC in many states looks like regular/ordinary lit, results in a J, its final, andit should be respected in otherstates.

No, like c/s J, this is nothing otherthan giving the effect VA would give it, whichmeans VA would modify its own J, ratherhere an enforcement of the FFC. FFCstatute says that give it the effect that the state that rendered the J would do. So, if

VA ordercould be modified by VA ct, then it can be modified by a DC ct. Today, a workeris entitled to seek and receive the most favorable benefits that hewould be entitled to, so if more than one states law is applicable, then the workerisentitled to the betterof the two states benefits, but not both awards.

f. Durfee (J/NE J as to JUR was RJ in MO. P brought an action in NE to quiet title to certain landsituated on the Missouri river. NE only had JUR overthe matterif land was deemed to be inNE. NE ct found land was in NE. D filed suit vs the P in Missouri to quiet title to the same landlater. Suit was removed to fed ct on div grounds. Fed ct held land was in MI, but held that allthe issues had been adjudicated in the NE litigation and that the NE J was res judicata. COAreversed holding MI not req to give FFC to the NE decision and that MI could relitigate the JURissue. SCT reversed.) Prec already says cant relitigate PJUR issues RJ principles apply to PJUR issues as well as SMJUR issues. Land is nothing special, RJ principles still apply. In the absence of fraud in obtaining the J, sovereign immunity, orfed pre-emption issues

cant relitigate JUR issues. Bootstrapprinciple: that cts have JUR to decide whetherthey have JUR. Notes:

Missouri can review the issue of JUR, but otherside should sayyou can but in theface of a complete and adjudicated matter, the JUR determination should be givenFFC, like any othermatter.

g. Baker (J/FFC does not apply when first forum did not have auth to bind the second forum.Elwell, formerGM EE had been fired by GM and in some lit with GM agreed to an injunctiveorderin Mich that Elwell would not testifyvs GM ordisclose any info he learned as an EE ofGM w/o theirconsent. GM was sued by the Bakers and seeks to enjoin Elwell from testifying ithat litigation in MO.) Michs J cannot reach beyond the Elwell-GM controversy to control proceedings vs GM

brought in otherStates, by otherparties, asserting otherclaims the Mich court did notconsider.

FFC must be given to determination it had auth to make, but FFC need not be given todeterminations that it had no powerto make.

Notes: Could second state give greaterpreclusive effect than the rendering state would?

What if sisterstate rules are more preclusive? FFC statute says nothing about givinbroadereffect, but rathersays the same effects.

Inconsistent judgments (what should enforcing ct do when confronted with twojudgments?): Sunshine Mind, first ct was probate ct in Wash; it decides the corpstock should belong to the decedents H, decedents daughterpursues matterinIdaho, finds Wash lacked jurand it awarded a J that the stock should have beengiven to her. H: The J laterin time should be enforced if jurwas not thoroughlycontested in Wash lit. Dont know whetherWash should recognize the Idaho J. Lastin time rule fornow.


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iii. Recognition of Family Law Judgmentsa. Williams (J/SN could reexamine NVs jurisdictional finding of domicile . Couple elopes to NV,

get divorces there from formerspouses and then marry and move back to theirhome state NCNC in second suit inquires into whetherH was really domiciled in NV.) Priorcase held that the domicile of a deserting spouse has JUR to grant a valid divorce. Domicile is a jurisdictional fact to be determined by each ct; like Durfee (in rem jur fact

where land was located). Here, no one raised issue of whetherthe parties were trulydomiciled in NV in priorforum orlitigation.

Notes: Today, statutory exceptions to FFC statute, e.g. Defense ofMarriage Act (states don

have to recognize gay marriages of otherstates).

B. FEDERAL-STATE RECOGNITION OF JUDGMENTSi. Recognition of Federal Judgments by State and Federal Courts

a. Semtek (J/ fed CA suit (div) dismissing suit b/c of expired SOL in CA has no CP effect in MD,according to fed CL (which refers to CA CP effect law b/c sitting in div). Suit in CA removed toCA on div grounds. Suit was time barred by 2 yrSOL and judge dismissed the suit on themerits with prejudice. P brings anothersuit in MD state ct. MD ct dismisses the suit finding itis precluded by the fed ct (div) CA J, relying on the preclusive effect given by fed law whichapplies a broaderpreclusive effect. Note: CA law would not hold that SOL dismissal is CP). Preclusive effect of federal judgments is governed by fed CL. The fed CL, here, then

chooses to reference the law that would be applied by state cts in the State in which the fdiv ct sits. State law would not have applied, however, when the state law is incompatiblewith federal interests.

Notes: No statute specifying the preclusive effect of federal judgments, like FFC clause and

statute forstate judgments. Auth could arguably be found in the Supremacy Clause.

How is the approach adopted by the ct different from a traditional Eerie analysis? InEerie, the ct rejects the notion that there is a fed CL.

Easierargument if fed ct judgment was from a fed ct that had fed ? JUR. Apply fedCL to determine CP effect of a fed judgment.

If the CA suit had neverbeen removed to fed ct, but ratherremained in state ct, MDstate ct, would have just applied the principles of the FFC statute, and given the CA Jthe same preclusive effect the CA would have given the J resulting in the CA J notprecluding the MD suit.

ii. Recognition of State Judgments by Federal Courtsa. Kremer(J/A fed ct must afford FFC to admin factfindings reviewed by a state ct. P was laid of

by the D-NY corp. and laterbrought an employment discrim suit vs the D. P filed a discrimcharge with the EEOC, which directed him to first file his claim with the NYHRD. NYRHD findsthat there was no discrim and P appealed the decision. The decision was upheld by NYRHDsappeals board and the NY state COA. The EEOC ruled there was no reasonable cause tobelieve the discrim charge was true, but gave P a rt to sue letter. P then brought a Title VIIaction in NY fed ct.)


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I: Whethera fed ct in a Title VII case should give preclusive effect to a decision of a state upholding a state admin agencys rejection of an employment discrim claim as meritlesswhen the state courts decision would be RJ in the states own cts?

D argued that the discrim issue was precluded by the priorNY state admin and judicialproceedings. P argued that Title VII was an exception to the FFC statute. P also argued the didnt have a full and fair opportunity to litigate his issue in state ct.

Ct found that nothing in the language orhistory of Title VII suggested a congressional intto insulate Title VII cases from the preclusive effect ofpriorstate court proceedings.

Also, the ct held that NY had not denied the P a full and fair opportunity to litigate hisclaim, b/c NYs state factfinding satisfied the min pro reqs of the 14A DP Clause.

Notes: Advice: once get admin determination, dont appeal to ct, go straight to fed ct, and

argue that FFC doesnt apply.

FFC doesnt apply to admin determinations not reviewed by a ct. Elliott. Note: FFC clause requires that states give FFC to sisterstate judgments. FFC statut

requires that all cts in the US (state and fed) give FFC to state ct judgments.b. Marrese (J/remanded to dct to determine whetherIL would give preclusive effect to state ct

judgment. Ps applied to D formembership and denied. Ps first filed in state ct alleging thatthe denial of membershipviolated IL CL. Afterunsuccessfully bringing these claims, Psbrought antitrust actions in fed ct. Fed cts have exclusive JUR overantitrust claims. I:Whethera state ct J may have preclusive effect on a fed antitrust claim that could not havebeen raised in state ct?) Reaffirms Kremerprinciple that an exception to the FFC statute will not be recognized un

a laterstatute contains an express orimplied repeal. Rejects COAs position that the FFC statute allows a fed ct to give a state ct J greater

preclusive effect that the states cts themselves would give it. Adopts a two-step analysis:

Would the state that rendered the J give the J preclusive effect?o If fed claim is brought underan exclusive JUR statute, the Rstmt suggests that C

would not apply b/c the fed claim could not have been brought in the state ct. I.ethe state ct did not have jurisdictional competency.

o But state ct may not give CP effect and the P will be barred from bringing the actin fed ct.

o Advice: bring antitrust claim in fed ct w/ supp JUR overthe state claims orreseayourstates CP laws before first litigating in state ct.

If so, does the case present an exception to the FFC statute? Ct says to look to CGsintent.

c. Parsons Steel (J/Reversed injunction issued by the fed ct. Ps brought a fraud action in ALstate ct and anotheraction in fed ct based on fed law. The fed trial went to trial first and the Dprevailed. The D pled in state ct that the fed suit was RJ in the state case. The state ct heldthat RJ did not apply and ultimatelyruled in favorof the Ps. D then filed a third action in fed cto enjoin the P from furtherprosecution in state ct underthe relitigation exception of theAnti-Injunction Act. Fed ct enjoins the state ct action.) SCT holds that the fed ct should have given the state ct J the full preclusive effect it woul

have had in AL state ct. Even if the state ct mistakenlyrejected the Ds claim of RJ in state ct, that does not justify

the highly intrusive remedy of a fed ct inj barring enforcement of a state ct J.


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Challenges to a state cts determination as to the preclusive effect of a fed J must bepursued by way of appeal in state ct and latercertiorari to the SCT.

Notes: as to the CP effect of the fed J, state ct should have looked to fed CL. Semtek. The obligation of a fed ct to give FFC to a state ct judgment prevails even when the

state ct J failed to give FFC to a priorfed ct J. Priorthree cases illustrate the cts hesitancy to find exceptions to the FFC statute:o As to a fed issue. Kremer.o As to a fed statute with exclusive JUR. Marrese.o As to the Anti-Inj statute. Parsons Steel.

RECOGNITION OF FOREIGN-COUNTRY JUDGMENTSiii. The starting point

a. Hilton (J/French judgment not recognized. NY citizens sued in France forsums hey allegedlyowed the P. D appeared in the French proceeding and litigated the merits. French ct rendereda judgment vs the D). Ct recognizes fourcircum in which a ct would recognize a foreign judgment:

If both parties are citizens of the foreign state If defendant is a citizen of the foreign state, but the P is not Ifplaintiff is a citizen of the foreign state and defendant is not, and judgment is forth

defendant.

If a citizen of a foreign state recovers a judgment vs a non-citizen, then there must breciprocity b/w the two jurisdiction.

Here, the lack ofreciprocity trumps principles of comity. France would not enforce ourjudgment, so we would not enforce theirjudgment.

Notes: FFC clause is inapplicable to foreign-country judgments. US cts recognize foreign

judgments based on principles of comity. States have opined that Hilton doesnt establish a fed rule binding on the states;

rathera binding rule on fed cts.

Also limiting this decisions influence today is the fact that Eerie now requires that afed ct apply state law, ratherthan fed law on this issue.

Modern trend is to give foreign judgments the same effect given sisterstatejudgments.

The Uniform Acto 31 JUR have adopted the uniform laws.o Act abandons the reciprocityrequirement

iv. Jurisdictiona. Nippon (J/Although the ct believed the Jap ct had JUR overthe D, it stayed its proceedingspending the outcome of the Jap appeal. P, a Japanese corp., sued D, a NY corp., in Japan andreceived a judgment vs the D forsums allegedly owed to the P. D argued that Jap ct did nothave PJUR overthe D. D appealed to the Jap COA. While appeal is pending, the P seeks toenforce theirjudgment in fed ct in NY (div JUR). Since div JUR, ct applied NY sub law and COrules). Although neitherof the bases of JUR articulated by the Jap ct would be sufficient underN

law, NY law would find JUR overthe D based on othergrounds, therefore, the judgment vthe D in Jap is enforceable in NY.


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NY principles of PJUR were satisfied D voluntarily appeared in Jap underNY standards Ds biz in Jap was substantial enough that it made the D present and amenable to

suit in Jap underNY law. NY looks at both the foreign cts JUR and the nature of the foreign cts determination

v. Procedural Fairnessa. Cooley (1975) (J/Ps conviction in Iran should be recognized in the US. P was denied social

security benefits resulting from the death of herhusband b/c the admin judge found that the Phad killed herhusband. P had been convicted of killing herhusband while in Iran underIranlaw. P argue that the Iranian conviction should not be recognized in the US b/c herconvictionwas obtained thru methods that did not comport with DP underthe US Con. The admin judgeinquired into the facts and circum of the conviction). Ct held that the P received enough due process, maybe not the same as a US ct would giv

you, but enough forpurposes of enforcing a foreign judgment. Fora foreign judgment not to be recognized in the US, a US ct must find that the procedu

used by the foreign JUR was so shocking to the forum community that it cannot becountenanced. // countenanced means condoned

Here, the P had a rt to an att, herrts were explained to her, witnesses were cross-examineand interpreterappointed. This procedure is not so shocking to the forum community thacannot be countenanced.

b. Pahlavi (1995 post Shah regime) (SJ/P could net receive DP in Iran, therefore US ct could notrecognize Iranian default judgment vs her. Some banks seek to have enforced in a US ct adefault judgment rendered in theirfavorvs the D, a resident of CA and sisterto the formerShah of Iran. I: Did D show that she could not have gotten DP in Iran?). The ct looks at the circum surrounding the D: anti-Amx sentiment in Iran, terrorism threat

vs D, trials arent held in public, not impartial judges, att cant represent politicallyundesirable interests norcan witnesses testify in such cases.

Based on these facts, a trial in Iran would not be characterized as a sys of jurisprudencelikely to secure an impartial administration of justice. Therefore, the D would not have goDP in Iran.

vi. Substantive Defensesa. Bachchan (J/US ct could not enforce an English libel judgment, b/c the libel judgment was

rendered understandards different than the US. P brought an action in England vs D forpublishing and transmitting an allegedly untrue story associating the D w/ arms dealers.Judgment was rendered in favorof the P who now seeks to enforce the J in NY. NY law statesthat foreign judgments will be recognized unless not compatible w/ DP orPJUR grounds orifthe J is based on a COA that is repugnant to the public policy of NY). The ct held that it cannot enforce a foreign libel judgment granted pursuant to standards

deemed appropriate in England but considered not sufficient underthe US Con. B/c England lacks an equivalent to the USs FA forwhich a ct would considerin a libel

action, the English judgment cannot be enforced.

Exam tips:- use Book IV to deal with COL issues- issues otherthan COL issues should be answered according to applicable fed Con issues, fed statutes,

and state statute.


25/25


- TOC of Book IV might be helpful.- 4 hrs forexam- a few short answerquestions.- Traditional essay questions.- Double space the exam.

Documents

Conflict Lsu Ouline - 2008 - Short_johnson