1. Traditional Approachesa. Torts - The place of the wrong

i. Carroll 1. Applies 1st Restatement – Lex Loci Delecti §3842. “Where last event necessary to make an actor liable for an alleged

tort takes place”3. Exceptions (standard of care, required acts) see p. 15

b. Contracts/Capacity - The place of contractingi. Milliken v. Pratt

1. Applies 1st restatement – Lex Loci Contractus §332 see p. 212. “Law of place of contract (where last act necessary to make

contract binding is) determines validity and effect of a promise…with respect to capacity”

3. Use forum contract law to analyze transaction4. See p.22-23

c. Contracts – Validity vs. Performancei. 1st Restatement delineates

ii. Adequacy of performance – “determined by the law of the place of performance”

d. Propertyi. In Re Barrie’s Estate

1. Situs of property – law of place of immovable property governs e. Domicile

i. White v. Tennant1. Domicile = 1) intent to remain and 2) presence (even if for a

moment). See p. 332. Escape Devices (avoidance of application of) - Traditional Approaches

a. Characterizationi. Carroll

1. P tried but failed to characterize liability of employer as contract issue, forced to accept lex loci delecti

ii. Levy v. Daniels1. P successfully re-characterizes suit as contract issue (opposite of

Carroll), and avoids use of lex loci delectiiii. Venuto

1. Comes out opposite of Levy (no consistency among courts)b. Domicile + Status of individual

i. Haumschild1. Law of place of domicile governed capacity of family members to

sue each other (rather than lex loci delecti)c. Substance vs. Procedure

i. General – Forum applies its own procedural laws and the substantive laws of the state which state’s law governs.

1. 1st restatement perspective – p. 512. Grant v. McAuliffe

a. Issue of whether action survives tortfeasor’s death characterized as procedural/one of administration of estates.

3. Bournias v. Atlantic Maritimea. Though SOL’s are procedural in nature, they are sometimes

inexorably and inseparably linked to or “qualified by” the cause of action and must be considered substantive. Must examine on case by case basis.

ii. Uniform Conflict of Laws Act1. SOL and COA travel together from forum statutes.

iii. 1988 Amendment to Restatement1. Shorter SOL bars action absent exceptional circumstances.

d. Renvoii. Accept- follow whole of foreign law and follow its choice of law

ii. 1st restatement – look to foreign choice of law in land, validity of a divorce decree

iii. 2nd restatement – presumption of foreign internal law only unless uniformity considerations weigh strongly ( i.e. if forum wants to reach exact same result as the courts of another state/country would)

iv. In re Schneider’s Estate1. NY wants to behave exactly as a Swiss court would in determining

probate for Swiss citizen, so they accept renvoi. e. Public Policy

i. Dramatic departure from forum state’s idea of justice and fairnessii. 1st restatement § 612 and 2nd restatement §90 both permit it.

iii. NY cases1. Loucks v. Standard Oil

a. Wrongful death statute limiting damages was not offensive to NY public policy which allowed for unlimited damages.

b. (Cardozo) Exception only available where foreign law “offends our sense of justice or menaces the public welfare” or “shocks our sense of justice” or “violates form fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal”

2. Mertz v. Mertz

a. In failing to stay true to Loucks precedent, court finds spousal non-immunity law of CT offensive to NY’s spousal immunity law b/c not similar enough.

3. Holzer v. Deutschea. Public Policy exception only applies to COA’s not

defenses. A defense can travel with the COA and is inseparable.

3. Modern Approaches – Party Autonomy, interest analysis, 2nd Restatementa. Wills/probate – Statutorily solvedb. Contracts – Party autonomy/rule of validation

i. 2nd Restatement §187 see p. 1031. Note: 187(2)(b)“fundamental” ambiguous see. P 107

ii. Pritchard v. Norton1. Contracts are made to be enforced and courts should presume their

validity. Lex loci contractus is a rebuttable presumption, and the intent of the parties is probative.

iii. Siegelman v. Cunard White Star1. In every forum a contract is governed by the law with a view to

which it was made. Law of parties intention will govern validity of contract if 1) the choice is bona fide and 2) the choice is rational.

iv. Movable Property1. Wyatt v. Fulrath (probably not on the exam)

a. NY tries to validate the intentions of the parties, even in spite of such acts being illegal in domicile state/country.

c. INTEREST ANALYSISi. Brainerd Currie – The Pioneer – The Basics

1. Normally, the forum would apply its own law.2. However, if two laws could possibly apply, the court should

inquire into the policies expressed in those laws.3. If one state’s interests predominate clearly, there is a “false

conflict” and that state’s law should apply4. If both states are equally interested, the court should engage in a

“moderate and restrained” interpretation to try and eliminate the conflict.

5. If the court then finds two legitimate interests and a “true conflict” the court should apply forum law.

ii. Identifying False Conflicts1. Tooker v. Lopez

a. In fatal accident in Michigan involving NY domiciliaries, NY refuses to apply Michigan guest statute.

b. Factors

i. NY - NY residents, cars registered/insured in NY, garaged in NY, NY law mandates purchase of nationwide insurance against negligence

ii. Michigan – preventing insurance fraud against in Mich/ protecting insurance rates in Mich

c. Neumeier Rules2. Schultz v. Boyscouts (sketchy case)

a. In wrongful death action against charitable organization, NY dismisses claim under NJ charitable immunity law.

i. Interest depends on whether disputed law is conduct regulating or loss allocating. Determines that in this case it is loss-allocating so applies law of common domicile.

iii. Unprovided-for Cases (no state has interest)1. Erwin v. Thomas

a. In case where Washington wife sued in Oregon under Oregon law which protected Oregon wives, and Washington would bar the suit, neither state had an interest in the outcome, so court applies forum law.

i. Criticism – should have been false conflict/dismissed for failure to state claim (Kramer).

2. Kramer’s argument/Neumeier Case p. 159a. Look at how forum interest relates to multi-state factors. i.e

Neumeier case where Ontario guest statute doesn’t care about protecting NY defendants so Plaintiff should be able to recover from defendant under Ontario law.

iv. True Conflicts1. Interest analysis

a. Lilenthal v. Kaufmani. Where true conflict arises, must vindicate forum’s

law at expense of foreign law.1. Criticism – failure to do moderate and

restrained approachb. Bernkrant v. Fowler

i. At first looks to be a true conflict, but California court goes lengths to restrain California’s interest, determines it does not apply to oral contracts entered into outside of Cali.

2. California Comparative Impairment p. 178a. Bernhard v. Harrah’s Club

i. Choose the law that is most impaired by application of the other.

ii. California cannot reasonably effectuate its policy against dramshops if Nevada law applies.

b. Offshore Rental Co p. 183.c. Kearney v. Saloman Smith p 185.

3. NY – loss allocation v. conduct regulation – Neuemeier p.191-2a. Cooney v. Osgood

i. Issue as to whether D can implead employer is characterized as loss-allocating and court applies Neumeier Rules (which deal with loss-allocating)

ii. Generally post event laws that deal with remedy are loss-allocating. And if loss allocating, apply neuemeier

4. 2nd restatement and most significant relationship p. 200 (most popular) See big outline for summary.

a. Phillips v. General Motors – A Good Examplei. In a multi state products liability case, court

performs significant relationship analysis to determine that state of domicile and state of purchase have most significant relationship. Tie breaker: state of purchase would not apply its own law to the case, so it goes to state of domicile.

b. Wood Bros v. Walker – A Bad examplei. Court only looks at factor of policies of interested

states, doesn’t look at rest of §6(2). Also, doesn’t separate out the two counts of the complaint—since court finds NM law applies to one count it applies law to 2nd county (2nd restatement asks us to separate by issue)

5. The Better Law – Leflar see p 236 for analysisa. Choice influencing considerations:

i. Predictability of results (reliance of parties)ii. Maintenance of interstate/international order

1. Don’t create interests where they are weak2. Essentially a false conflicts analysis

iii. Simplification of the judicial task1. Don’t overburden court

iv. Advancement of the forum’s governmental interestsv. Application of the better law – how case “ought to

turn out”

b. Milkovich v. Saarii. In case where Ontario domicilliaries get into an

accident in Minnesota, Minnesota applies its own law, permitting P to recover (as opposed to Ontario guest statute), because of its interest as a “justice administering state”, medical bills incurred in Minnesota, and because court thinks its law is more “fair” and progressive.

c. Jepson v. General Casualtyi. Same forum a few years later does not apply the

“better law” factor but instead focuses on Leflar’s other factors, namely predictability and maintenance of the interstate order. Probative was fact that insurance rates reflected anti-stacking policy of ND.

v. 4 approaches to interest analysis:1. Currie moderate/restrained2. California comparative impairment3. NY interest analysis and neuemeier4. Most significant relationship 2nd restatement (most popular)5. Better Law

4. Problems old and newa. Depecage – Applying the laws of different states to determine different issues in

same case. i. Currie – Dislikes hybrid laws because he doesn’t think you should create

an action that would fail if localized in either state.b. Renvoi

i. Pfau v. Trent Aluminum1. In examining policies of interested states in wrongful death action,

court rejects argument that P’s state would have no interest because P’s state follows law of place of injury. Court argues back that P’s state might follow “whole” law of place of injury, accept renvoi back to it. But more importantly, that P’s state’s conflicts rules does not constitute a state interest (unless action was brought in that forum)

c. Complex Litigation + Depecagei. In Re Air Crash Disaster Near Chicago

1. Where plaintiffs from all over the US were, in Illinois, suing an airliner and the company that designed the plane, the court adopted depecage to determine which law applied. Performs “significant relationship” analysis for those plaintiffs whose domicile states

used that approach, “comparative impairment” for California plaintiff’s, etc.

a. 2nd restatement states – finds that because no “state” has a more significant interest than forum (multiple states indeed had more significant interests), uses forum as tie breaker

b. California – Finds equal impairment and applies Illinois law again.

2. Criticism – rationale of tiebreak approach? Lear – Missouri had most recent, statutorily codified, and therefore compelling interest.

3. P. 281 summary5. Constitution and Choice of Law

a. Sourcesi. Due Process

1. 14th Amendment section 1 – Due process clause – “[N]or shall any State deprive any person of life, liberty, or property, without due process of law…”

ii. Full faith and credit1. Article 4 section 1 – “Full Faith and Credit shall be given in each

State to the Public Acts, Records, and judicial Proceedings of every other state. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

2. 28 U.S.C. § 1738 - “Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory, or Possession from which they are taken.”

b. Due Processi. Home Insurance Co. v. Dick

1. Violation of Mexican company’s due process to apply Texas 2 year statute of limitations to contract which was executed and performed in Mexico, and which contract contained a provision allowing actions only for 1 year.

a. Texas was overreaching, defendants were unfairly surprised, and Texas had insufficient contacts with Mexican company. No benefits conferred by Texas on Mexican Company (quid pro quo theory).

ii. NY life insurance v. Dodge (Opposite of Dick – decided earlier)1. Not a violation of Missouri resident’s due process to apply NY

insurance law to policy purchased in Missouri and accepted by mail in NY.

a. Money was borrowed upon a policy from the issuing company at its home office in NY. Missouri cannot impair a NY company’s liberty to contract with those who seek its services. Essentially, contacts were sufficient.

iii. Hartford v. Delta1. A state may limit…the making of certain contracts within its own

territory…but cannot impair right of citizens in other states to make a contract not operative within its jurisdiction and lawful where made. State may not enlarge obligations of party to accord with its local statutory policy on ground that on party is its own citizen. Facts - P. 318

2. In terms of contacts: Dick < Delta < Dodge (violations < not < not)c. Full Faith and Credit

i. Bradford Electric Light v. Clapper 1. New Hampshire couldn’t apply its own law in employee tort suit

against employer when employer state was workman’s comp state (and thus barred such tort suits).

a. Workman’s comp should not offend public policy of NH, and full faith and credit does not require enforcement of every right conferred by a statute of another state. Effectiveness of Vermont law would be gravely impaired if employee was free to disregard it.

ii. Alaska Packers (opposite of Bradford)1. California could apply its own law despite employment contract

containing workers comp and choice of law clause pointing to Alaska. Court presumes that, prima facie, a state can apply its own law in its own courts and not always give in to interests of other states (balancing act) unless overcome.

a. Comes out opposite of Bradford most likely because in this case contract was entered into, and parties were all from, California.

iii. Pacific Employers1. California could apply its own workers comp statute to a Mass.

employee of a Mass employer doing work in California. While Mass and Cali both provided remedies for liabilities they were constitutionally authorized to impose, neither is bound, apart from compulsion of FFC, to enforce the laws of the other.

a. Mass cannot impair constitutional authority of another state (Cali) to legislate for the bodily safety and economic protection of employees injured within it.

b. Similar outcome to Alaska Packers but less of a balancing test.

c. Opposite of Bradford because in that case Vermont’s policy was not obnoxious to NH’s. Here, Cali and Mass acts are directly combative.

d. Convergence of DP and FFCi. Allstate v. Hague – Significant Contacts p 324 EE

1. Did not violate FFC or due process of insurance company to apply Minnesota law to a policy that was entered into in Wisconsin (M – stacking, W – no stacking). (insurance policy had no choice of law clause)

a. Supermajority – state’s jurisdiction over a defendant insurance company by itself was not enough for the state to apply its law

b. “[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or a significant aggregation of contacts, creating state interests, such that choice of law is neither arbitrary nor fundamentally unfair.” (similar to minimum contacts for PJ but more restrictive requiring significant contacts).

ii. Phillips Petroleum v. Shutts1. In class action brought in Kansas state court on behalf of persons

entitled to interest for delayed royalty payments from gas leases, Kansas could NOT apply Kansas equity law because only 3.5% of class members were located in Kansas and .025% of the leases were in Kansas.

a. Court found no significant aggregation of contacts between Kansas and Phillips Petroleum, adding “when considering fairness [under sig. contacts test], an important element is the expectation of the parties” – it was impossible to predict application of Kansas law.

iii. Sunoil v. Wortman1. In case nearly identical to Shutts, Kansas applied its statute of

limitations law to all members of the class, even though the vast majority of the members and leases were outside Kansas. Significant contacts test does not apply to procedural rules which forums have historically been able to use in their own courtrooms.

iv. Watson1. Louisiana had a “legitimate interest” which permitted the

constitutional application of the state’s direct action statute to a

claim by a Louisiana resident injured by a hair-curling product made out of state. Different laws can apply to same transaction!

2.e. Obligation to provide a forum

i. Hughes v. Fetter1. Wisconsin couldn’t refuse to hear a cause of action from another

state because outright discrimination is a violation of FFC.a. Court recognizes that public policy exception is still in

effect, but since Wisconsin has a similar COA (and no strong policy against wrongful death actions) it couldn’t refuse to hear others/dismiss them with prejudice.

b. Court took note of fact that P couldn’t bring the claim elsewhere

c. Slamming the door to sister states is simply unconstitutional.

ii. Broderick v. Rosner1. Similar outcome. Forum non conveniens is an option if strong state

interest against hearing suit.f. Reverse Door Closing

i. Tennessee Coal v. George1. Sister state was not prohibited from hearing a case based on an

Alabama statute which required the suit to be brought in Alabama. States cannot control the enforcement of rights they create, in other states, but other states can, if they want, respect such restrictions on comity grounds.

a. See Crider v. Zurich – State may enforce a claim created by a sisters state’s law and need not give FFC to a requirement imposed by the sister state that the claim be brought before a particular administrative tribunal. Simply, a state can create a COA but not control the litigation of it in foreign forums.

g. Privileges and Immunities Clausei. S.Ct. of NH. V. Piper

1. NH could not discriminate against noncitizens by denying them access to the NH bar.

a. PI clause (art. 4 sec. 2) intended to create national economic comity, free trade, etc. Access to a job, property, to courts, etc, are fundamental rights.

6. Recognition of Judgmentsi. “Such Acts, records and judicial proceedings or copies thereof, so

authenticated, shall have the same full faith and credit in every court

within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory, or Possession from which they are taken.” 28 U.S.C. § 1738

ii. Res Judicata (claim preclusion)1. Must bring related claims together at once. Elements:

a. Finality – case is over and appeals exhaustedb. On the merits – judgment entered on substantive not

technical groundc. Same claim – Same transaction or occurrenced. Same parties – or privity of Parties

iii. Collateral Estoppel (issue preclusion)1. Concerns facts that were already litigated

a. Same issueb. Actually litigatedc. Actually decidedd. Necessary to the judgment

iv. Saves judicial resources, time, etc. But criticized if first court “got it wrong” and justice is sacrificed for sake of finality.

v. 28 USC 1738 specifically mentions judgments and state courts and thus goes further than the constitution.

b. No public policy exception.i. Fauntleroy v. Lum (very useful)

1. Mississippi was required to enforce a judgment from Missouri which violated Mississippi Law, despite fact that recognizing the judgment was offensive to its public morals.

a. Parties entered contract for cotton futures in Mississippi, took it to Missouri to get a judgment, and returned to Mississippi to enforce it. Even if Missouri shouldn’t have enforced the contract, FFC demanded recognition in sister state.

i. Doesn’t this create friction, not comity?ii. Yarborough v. Yarborough

1. FFC requires other states to give the same effect to a judgment as rendering state would. Home state of child was required to give same effect to a non-modifiable lump sum award of child support under law of Georgia where it was entered. Despite fact that child needed more money to live, child’s state was powerless to require additional support from father.

a. New restatement contemplates need for exception in extreme circumstances

c. Workers’ compensation exception (debatable usefulness)

i. Thomas v. Washington Gas and Light1. FFC does not preclude a supplemental worker’s compensation

award in a second state even though the injured worker had already recovered an award in another state and the first state’s award barred an additional award.

a. Court goes into pacific employers style interest analysis for an unexplainable reason.

b. Lear: bizarre that FFC was extended to administrative proceedings

d. Foreclosure of jurisdictional issuesi. Durfee v. Duke

1. Party could not re-litigate question of whether first court had subject matter jurisdiction over the case because that issue had already been fully adjudicated.

a. “a judgment is entitled to FFC – even as to questions of jurisdiction – when…those questions have been fully and fairly litigated an finally decided in the court which rendered the original judgment.”

ii. But see Clarke v. Clarke1. When it was overwhelmingly clear that first court lacked

jurisdiction over land in probate proceedings, second court was not required to give first state’s judgment FFC.

a. This does not overrule Durfee, it is an exception only available when the first court so clearly lacks SMJ and the second court has exclusive jurisdiction over the subject matter.

iii. Fall v. Eastin1. New deed written up by Washington State for land in Nebraska

had no effect in Nebraska (P had won deed in divorce but D had given deed away already, so P asked court to write up new one). Only state where land sits has SMJ over land itself. However, other states may compel behavior regarding land, i.e. require someone to relinquish the deed or convey it. So P should have just domesticated the divorce judgment! *BAD lawyer*

a. Lear: Land Taboo is alive and well. But this case shows there are ways to get around it (even if lawyer here failed)

iv. Balancing test of Restatement 2nd §971. Balancing test to determine whether collateral attack on subject

matter jurisdiction should be allowed. Elements:a. SMJ clearly absent (Lear: “any moron test”)b. Is Question of law, not fact

c. Court was one of limited jurisdiction not generald. Question was not actually litigatede. Policy against ct violating SMJ strong.

e. Personal jurisdiction can be attacked collaterally if default judgment (Pennoyer v. Neff)

f. Custody/Support orders (Won’t be on test)i. Worthley v. Worthley

1. W could sue H under NJ support order in Cali (to modify it)g. Last in time rule – Alive and well

i. Treinies v. Sunshine Mining Co.1. 2nd court disregards first court’s judgment on same claim because

1st court allegedly lacked SMJ. 3rd court upholds last in time rule. 2. Must exhaust all appeals to make judgment final.

h. Anti-suit injunctionsi. Courts will ignore another court’s anti-suit injunction against it (telling it

to stop hearing a certain case) if it hasn’t reached its decision on the case yet and if there are no other grounds for dismissal (like forum non conveniens). But isn’t an anti-suit injunction a “final” judgment? Lear: this is a sticky situation in which nobody is sure of what to do—just know the possibilities and that courts like to have control over what they hear.

i. Injunctionsi. Baker v. General Motors Corp.

1. After Michigan settlement between design engineer and GM in which the engineer agreed not to testify against GM in any lawsuits, the engineer gets around the rule by getting himself subpoenaed by courts. Does FFC stop the Baker’s in Missouri from obtaining the engineer’s testimony as an evidentiary issue in their case against GM?

a. In holding that FFC does NOT prevent Baker from using the engineer in their case, court finds that because the Bakers’ were not party to the settlement agreement, the “same parties” element of issue preclusion is missing.

i. Unless the settlement/injunction was domesticated, Michigan cannot determine how evidentiary issues will play out in lawsuits brought by other parties in other states.

ii. Lear: courts can subpoena who they want. Michigan simply has no SMJ over Missouri evidence law.

iii. Injunction are normally subject to FFC with the exception of Land, Procedure (this case) and Province of other states (fishing and wildlife?)

iv. Dicta: There is no “roving” public policy exception to FFC.

j. State Judgments in Federal Courti. 1738 makes FFC obligatory in federal courts

ii. Allen v. McCurry1. After D lost suppression of evidence hearing (concerning illegal

search and seizure) and after state court found D guilty, D brings separate 1983 against police officers for illegal search and seizure. Question is whether res judicata and collateral estoppel generally apply to §1983 actions (federal COA’s) brought in state courts.

a. Despite strong argument that state’s findings shouldn’t be given preclusive effect in fed ct, court finds no express or implied repeal of §1738 (FFC) in §1983. Court finds that because preclusion requires that the first court “fully and fairly” litigated the case/issue, the concern about state’s ability to decide issue is already implicit in elements of preclusion.

b. Very limited issues have exclusive federal jurisdiction, and its assumed most federal COAs are brought in state court.

c. To be exempt from §1738 must be EXPRESS, CLEAR, statement mandating an exemption/exception. Implicit is “theoretically possible”.

d. Criticism p 550.iii. Marrese v. American Acad. Of Orthopaedic Surgeons

1. “If state preclusion law includes a requirement of prior jurisdictional competency, which is generally true, a state judgment will not have claim preclusive effect on a cause of action within the exclusive jurisdiction of the federal courts.

2. “Reference to state preclusion law may make it unnecessary to determine if the federal court, as an exception to 1738, should refuse to give preclusive effect to a state court judgment. The issue whether there is an exception to 1738 arises only if state law indicates that litigation of a particular claim or issue should be barred in the subsequent federal proceeding”

3. Lear: court tells us to ask if state law would have precluded it to determine whether federal court should hear it. Of course states cannot hear cases under exclusive federal jurisdiction. Really doesn’t make sense to talk about state law here.

iv. Parsons Steel

1. In collateral proceedings situation, where same case was being litigated in state and federal court, last in time rule applied where federal court finished first and state court finished second.

v. Matsushita v. Epstein1. In collateral class action proceedings on same facts (fed ct in cali,

state court in deleware)(federal court had exclusive jurisdiction over its claim, though), state renders first judgment (a settlement decree where P’s release all claims related to facts) and it is argued in federal court that the judgment gives preclusive effect to the fed claims (just like Marrese except these actions were simultaneous not subsequent)

a. Court recognizes Marrese rule that state court judgment can give preclusive effect to federal claims exclusive to federal jurisdiction.

b. First, court looks to first rendering state to determine if federal claim would be banned there (how is this possible if claim is exclusive federal jurisdiction?)

i. Determines that Delaware would enforce the release of all claims in the settlement

c. Second, look to see if there is an exception to 1738 in the exclusive federal act

i. Exception arises if “irreconcilable conflict” with policy behind exclusive federal jurisdiction

ii. Court finds no partial repeald. Dicta: if you can waive right to federal court you can

release exclusive federal claims.7. International enforcement of Judgments

a. Judgments In Rem are valid everywhereb. We enforce admiralty judgments without qualmc. States generally have their own private international recognition lawd. Traditional American

i. Hilton v. Guyot1. Foreign judgment should be given full preclusive effect if:

a. There was an opportunity for a full and fair trial before a court of competent jurisdiction

b. It was the product of regular proceedingsc. It was decided after due citation or voluntary appearanced. The foreign system of justice was likely to secure the

impartial administration of justice between citizens of different countries.

e. More factors in long outline

2. No preclusive effect if:a. Lack of jurisdictionb. Fraudc. Mistake/irregularity/biasd. Invalidity in rendering country.e. Lack of reciprocity

e. Reciprocityi. Hilton v. Guyot

1. Despite factors above, court ultimately denied enforcement of the French judgment on the ground that French courts would not enforce judgments from the US.

f. Uniform Money Judgments Recognition Acti. P. 905 very important

ii. Only if a state doesn’t follow this do you look to the state’s case law and statutes.

8. Conflicts of Federal and State Law – Vertical Conflictsa. Erie’s problems with Swift v. Tyson

i. Problems1. Separate state law and a floating federal general common law

mean that two bodies of law governed citizens. Citizens could be discriminated against if out of state parties brought them to federal court to take advantage of federal law. Citizens should be able to rely on law. (inequitable administration of justice)

2. Forum shopping was thus a huge issue as removing to federal court could guarantee different result.

b. End of federal general common lawi. Erie turning point

1. In the rules of decision act (RDA) “laws” now refers to judge-made state law as well as statutory law. Federal judges no longer can make up federal general common law except in areas where they have constitutional authority (like admiralty).

c. Federal courts still could use own procedure most of the time:i. Guaranty Trust v. York

1. In case where party could not go forward in state court under state SOL but could go forward in federal court under laches doctrine, court holds that federal courts sitting in diversity should apply federal procedure law unless failure to use state procedure law would affect the outcome of litigation.

a. Federal courts in diversity are supposed to come to “substantially” same outcome as state courts, so when

federal court is used to take advantage of some discrepancy, use state law.

d. Brydi. Court must determine whether to use federal law (giving finding of fact

duty to jury) or state law (to judge) after York.1. Court assumes that if law is substantive, Erie requires application

of state law. If procedural, still might be required to use state procedure law under York test.

2. Court finds that issue of whether judge or jury decides the question fails York test in light of affirmative countervailing considerations of federal court:

a. 7th amendment indicates strong policy in federal courts of giving question to jury. Overrides RDA despite it potentially being outcome determinative.

3. Erie/York – fed has no interest in applying substantive law of states/procedural law of fed because neutrality is primary concern

4. Bryd – But fed cares about the integrity of its courts! Lear: fed has substantial procedural interest (granted by constitution) “essential characteristic” test

e. Hannah v. Plumer – guided eriei. Court must determine if defendant should have been served in accordance

with Mass state law rather than FRCP as he was. 1. Court adopts new analysis for on point federal rules adopted under

the REA. Fed rules are valid so long as i. rule deals with practice and procedure and

ii. the rule does not abridge, modify, enlarge any substantive right (and preserve right to trial by jury)

b. procedure = “judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them”

c. “incidental” effect on outcome doesn’t matter as it did under RDA

2. Court also says even if FRCP wasn’t on point not clear Mass rule would fall within outcome determinative test because that test should only be looked at with twin aims of erie in mind. Would failure to use state law result in

a. Inequitable administration of justiceb. Forum shopping.

ii. Court puts END to “open season” on federal rules so long as rule is “rational capabale of classification” as procedural.

f. Walker casei. Court interprets FRCP(concerning when SOL tolls) very narrowly so as to

not apply to SOL’s and thus not to the case in general.ii. Because no federal rule on point, Court does RDA analysis (twin aims

test)g. Woods case

i. Court interprets federal rule, providing for lost appeal penalties at discretion of judge (which conflicted with Alabama 10% penalty law), broadly and thus on point, so proceeds with REA analysis.

h. Ricoh Casei. Not a federal rule on point…but rather a federal statute!

1. Statutes trump all state laws and rules, so only question is whether it is constitutional under a rational basis test – “rationally capable of classification” as procedural.

i. Gasperini casei. Issue is whether to use federal judge made standard of review (shocks the

conscience) or NY’s tort reform standard of review (materially deviates from reasonable) in a federal court sitting in diversity in NY.

1. We have no Rule, we have no statute, so whats left is RDA analysis. But NY’s law might violate 7th amendment?

a. Not applying state standard of review probably will result in forum shopping and an inequitable administration of justice. This is very substantive

i. How to get around 7th amendment? Court discuses how this might invoke the same type of federal interest as the byrd case did, where despite being outcome determinative the federal rule was part of an essential characteristic of the federal court system. In Byrd it was either judge or jury, either one or the other. In this case both can be accommodated because appellate court can review the district court’s application of the NY standard under an abuse of discretion standard. This way federal interest is served and NY interest

j. Semteki. California SOL did not preclude party from bringing other claims arising

out of the same facts, but FRCP(41) did preclude it. 1. we got one on point (REA) and court says it looks like failure to

use state law might abridge/modify a substantive right….but then2. scalia blows it, starts to apply RDA instead. 3. Regardless, it turned out right:

a. Preclusive effect of federal judgments is generally governed by the law of the state in which the federal court entering the judgment sits.

k. Klaxoni. Issue was whose choice of law rule to use in diversity action—federal

judge made choice of law or state choice of law?1. RDA analysis yields obvious result. Use state law

a. 1404 transfer law follows9. Forum Non Conveniens + Erie

a. Piper Aircraft casei. If you are a foreign P and not suing at home, the presumption that you get

to choose your own forum goes out window. No federal rule of FNC – judge made.

ii. Twin aims1. Forumshopping – yes2. Ineq admin of just. – yes3. But-gasperini/bryd balancing

a. Affirmative countervailing interests – would using state FNC conflict with characteristic of fed court system

i. Control of case load yesiii. Conclusion – fed courts control own access to own courts.iv. Similar analysis for all court access problems