outline - conflict of laws

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I. Personal Jurisdiction a. General and Specific Jurisdiction i. Pennoyer v. Neff (U.S. 1878) 1. Did Oregon have jurisdiction over land? Neff? 2. Territoriality a. Oregon has jurisdiction over land within its territory b. Presence equals power ii. International Shoe v. Washington (U.S. 1940) 1. Did Washington have jurisdiction over International Shoe? 2. Jurisdiction exists when there are minimum contacts to establish fair play and substantial justice iii. Helicopteros Nacionales v. Hall (U.S. 1983) 1. Did Texas have jurisdiction over Helicos? 2. Supreme Court finds no jurisdiction iv. General Jurisdiction 1. The number of contacts defendant has with the forum give rise to jurisdiction in any suit 2. Requires systematic and continuous contacts v. Specific Jurisdiction 1. Jurisdiction is based on contacts related to or arising from the subject of the suit b. Transient Jurisdiction i. Asahi Metal v. Superior Court of California (U.S. 1987) 1. Did California have jurisdiction over Asahi? 2. Supreme Court finds that Asahi lacks “minimum contacts” to establish jurisdiction 3. Asahi may have foreseen that their product may end up in CA, but they did not purposefully avail themselves of the benefits of CA

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Page 1: Outline - Conflict of Laws

I. Personal Jurisdictiona. General and Specific Jurisdiction

i. Pennoyer v. Neff (U.S. 1878) 1. Did Oregon have jurisdiction over land? Neff?2. Territoriality

a. Oregon has jurisdiction over land within its territoryb. Presence equals power

ii. International Shoe v. Washington (U.S. 1940) 1. Did Washington have jurisdiction over International Shoe?2. Jurisdiction exists when there are minimum contacts to establish

fair play and substantial justiceiii. Helicopteros Nacionales v. Hall (U.S. 1983)

1. Did Texas have jurisdiction over Helicos?2. Supreme Court finds no jurisdiction

iv. General Jurisdiction1. The number of contacts defendant has with the forum give rise to

jurisdiction in any suit2. Requires systematic and continuous contacts

v. Specific Jurisdiction1. Jurisdiction is based on contacts related to or arising from the

subject of the suitb. Transient Jurisdiction

i. Asahi Metal v. Superior Court of California (U.S. 1987) 1. Did California have jurisdiction over Asahi?2. Supreme Court finds that Asahi lacks “minimum contacts” to

establish jurisdiction3. Asahi may have foreseen that their product may end up in CA, but

they did not purposefully avail themselves of the benefits of CA4. CA jurisdiction offends “traditional notions of fair play and

substantial justice”ii. Burnham v. Superior Court of California (U.S. 1990)

1. Did California have jurisdiction over Burnham?2. Supreme Court says a state has power over those within its

territory3. Presence equals power

iii. World-Wide Volkswagen v. Woodson (U.S. 1980) 1. Did Oklahoma have jurisdiction over WWV?2. Supreme Court says no jurisdiction because no minimum contacts3. WWV did not purposefully avail themselves of OK

II. Choice of Lawsa. The Territorial Approach

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i. Torts1. Alabama Great Southern Railroad v. Carroll (Ala. 1892)

a. Does the Court apply law of Mississippi or Alabama?b. Injury occurred in MS, therefore apply MS law

2. 1st Restatement Approacha. The place of the wrong is the state where the last event

necessary to make an actor liable takes place. b. Except:

i. Poison – where it takes effectii. Deleterious Substance – where it takes effect

iii. Harm to Land or Chattels – where the force takes effect

iv. Fraud – where loss is sustainedv. Defamation – where the statement was made

c. Law of the place of the wrong is appliedii. Contracts

1. 1st Restatement Approacha. The place of contracting is the place in which, under the

general law of Contracts, the principal event necessary to make a contract occurs

b. When a contract becomes effective on delivery, the place of contracting is where the delivery is made

c. When a contract document is sent by common carrier, the place of contracting is where the document is posted

d. When a document is delivered through an agent, the place of contracting is where the agent delivers it

e. In a unilateral contract, the place of contracting is where the event takes place which makes the promise binding

f. In a bilateral contract, the place of contracting is where the second promise is made in consideration of the first promise

g. When an offer is made in one state and the acceptance is sent from another state the place of contracting is:

i. If sent by an agent, the state where the agent delivers it

ii. If sent by any other means, the state from which the acceptance is sent

h. Law of the place of contracting determines:i. Capacity to make the contract

ii. The necessary form in which the promise must be made

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iii. The mutual assent required to make a promise binding

iv. Any other requirements for making a promise binding

v. Circumstances which make a promise voidvi. The nature of the duty for the performance of which

a party becomes boundvii. When and where the promise is to be performed

viii. The absolute or conditional character of the promisei. The place of performance is the state where the promise is

to be performedj. Law of the place of performance governs:

i. The manner of performanceii. Time and place of performance

iii. Who shall performiv. The sufficiency of performancev. Excuse for non-performance

2. Poole v. Perkins (Va. 1919) a. Promissory note payable in VAb. Note signed and delivered in TNc. TN allows plea of covertured. If TN law applies, note is voide. If VA law applies, note is validf. Court finds that contract is governed by the place of

performance: VA3. Linn v. Employers Reinsurance Corp. (Pa. 1958)

a. Contract for payment of insurance commissions, accepted by phone

b. If NY law applies, contract is voidc. If PA law applies, contract is validd. Court finds that acceptance takes place where the words are

spoken: remanded to determine thatiii. Marriage

1. 1st Restatement Approacha. Marriage is valid everywhere if the law of the state where

contract of marriage takes place is complied withb. Marriage is invalid everywhere if and requirement of the

law of the state where the contract of marriage takes place is not complied with

c. If one party, forbidden from remarriage by one state, remarries in another state, the marriage is valid everywhere

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d. Marriage which is against the law of the state of domicile will be invalid, even if the law of the state of celebration is complied with, when:

i. Polygamous marriageii. Incestuous marriage

iii. Interracial marriageiv. Marriage of a domiciliary which statute makes void

e. Marriage celebrated in one state and contrary to policy in another state shall not be recognized by the latter state

f. Law of the state of celebration governs the nullity of a marriage

g. Status of legitimacy is governed by the law of the domicile of the parent whose relationship is questioned

h. Legitimate kinship of a child to either parent from the time of birth is governed by the law of the domicile of that parent at that time

2. In re May’s Estate (N.Y. 1953) a. Marriage celebrated and valid in Rhode Islandb. Would have been invalid if celebrated in NYc. Court finds marriage validd. Declines to extend statute preventing such marriage to

invalidate foreign marriages3. Lanham v. Lanham (Wis. 1908)

a. Marriage celebrated in Michiganb. One party prohibited from remarrying by Wisconsinc. Court finds marriage invalid

iv. Real Property1. 1st Restatement Approach

a. Property rights in a tangible thing are governed by the laws of the state where the thing is when the rights are created

b. Capacity to convey land is governed by the law where the land is

c. Formalities of conveyance are determined by the place where the land is

d. Validity of conveyance is determined by the place where the land is

e. Law of the place where land is determines its devolution upon intestate death of the owner

2. Burr v. Beckler (Ill. 1914) a. Deed for property in Illinois conveyed from defendant to

plaintiff, in exchange for promissory note

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b. Deed and note written and conveyed in Florida, which has coverture law

c. Court finds that although the deed regarded property in IL, the transfer of the deed was performance of a contract made in FL and therefore, because of coverture, the contract was invalid per FL law

3. Thomson v. Kyle (Fla. 1897) a. Note and mortgage executed by defendant/appellant, a

married woman, for her husband’s debtb. Note and mortgage executed in Alabama, which does not

allow the debt obligation of a married woman for her husband’s debt

c. Mortgage for property in FLd. FL allows a married woman to execute a mortgage as

security for her husband’s debte. Court finds that though she may not be obligated by the

promissory note, the mortgage is valid because it refers to real property in FL and therefore, mortgages and other action referring to the property shall be governed by the laws of FL

v. Wrinkles in the Theory1. Characterization

a. Haumschild v. Continental Casualty Co. (Wis. 1959) i. Accident in California, husband and wife both

injuredii. CA law prevents husband and wife from suing one

anotheriii. WI law allows husband and wife to sue each otheriv. WI COLA is the 1st restatement: law of the state

where the tort occurredv. Court characterizes the suit as not a tort but family

law, and therefore the law of the domicile of the parties governs capacity to bring suit, in this case WI

2. Substance and Procedurea. 1st Restatement Approach

i. Court of the forum determines whether a question is substance or procedure

ii. Forum determines procedureiii. Forum determines who may and must sue or be

sued

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b. Sampson v. Channell (1 st Cir. 1940) i. Accident in Maine

ii. Forum is Federal Court in Massachusetts, due to diversity jurisdiction

iii. Per Erie v. Tompkins: Federal court, sitting in diversity apply law of state where court resides

iv. ME requires showing of due care on part of plaintiffv. MA puts burden of proof of contributory negligence

on defendantvi. Trial Court finds that burden of proof is substantive

and therefore applies ME law as place of the wrongvii. 1st Circuit reverses saying that a MA court would

have placed burden on defendant as burden of proof in MA is procedure

c. O’Leary v. Illinois Terminal Railroad (Mo. 1957) i. Accident in Illinois

ii. MO has burden on defendant to show contributory negligence

iii. IL has burden on plaintiff to show no contributory negligence

iv. Forum looks to own laws to determine whether substantive or procedure

v. 1st Restatement: Is procedure inextricably intertwined with cause of action? If yes, then the law of the place of the wrong will guide the substantive v. procedure question of the forum

vi. Court finds that duty of care requirement must be satisfied before cause of action may be brought, therefore MO courts will apply IL burden of proof

d. Grant v. McAuliffe (Cal. 1953) i. Accident in Arizona

ii. CA allows suits to be brought against a decedent’s estate for negligence

iii. AZ does not allow suits against decedent’s estate for negligence

iv. Court determines that capacity for decedent to be sued is procedure; AZ incapacity of decedent to be sued is not inextricably intertwined with the cause of action

3. Statutes of Limitationa. 1st Restatement Approach

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i. Actions barred by SoL of forum, no action can be maintained though not barred by SoL of place where cause of action arose

ii. Action not barred by SoL of forum, action can be maintained though barred by SoL of place where cause of action arose

iii. If law of state conditions right of action on being begun within a period of time, no action can be brought in any state after that period

b. Duke v. Housen (Wyo. 1979) i. Defendant gave gonorrhea to plaintiff

ii. D and P had sex in DC/VA, NY, PA, IA, NE, and CO

iii. 1st instance in VA, last instance in NYiv. DC/VA, NY, PA, IA, NE, and CO have 2-3 yr.

statutes of limitationsv. WY has 4 yr. statute of limitation

vi. WY has borrowing statute which requires use of statute of limitation of place where cause of action arose

vii. Court applies NY law to determine when and where cause of action arose: NY, NY statute of limitations bars suit

4. Renvoia. In re Estate of Damato (NJ 1965)

i. Bank account in trust in FLii. Decedent dies in NJ

iii. Trust invalid in NJiv. Trust valid in FLv. NJ COLA says law of situs of trust

vi. FL COLA says domicile of trust creatorvii. NJ Court applies NJ law following FL COLA

5. Domicilea. In re Dorrance’s Estate (PA 1932)

i. Decedent worked in NJ, had previously lived in NJ, went to church in NJ, voted in NJ and claimed to be a NJ resident

ii. Decedent physically spent time and lived in PA, had estate in PA

iii. Court finds that decedent was domiciled in PAb. The Modern Approaches

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i. Evolution1. Haag v. Barnes (NY 1961)

a. Child born in IL to plaintiffb. P is resident of NYc. Defendant is resident of ILd. P and D agreed in Illinois for D to provide for P and childe. P agreed that D was excused from actions relating to childf. Court finds that the law of the place with the “most

significant contacts” will applyg. Court finds that the “center of gravity” of the agreement is

in IL, Court applies IL lawii. Interest Analysis

1. Schultz v. Boy Scouts of America, Inc. (NY 1985) a. Defendant’s employee molested plaintiff in NY and

continued to do so in NJb. Plaintiff suffered psychological pain and suffering and

committed suicide in NJc. NJ recognizes doctrine of charitable immunityd. NY does not recognize doctrine of charitable immunitye. P and D are domiciled in NJf. Court finds that “the law of the jurisdiction having the

greatest interest in the litigation will be applied”g. Court finds that, as P and D were both domiciliaries of NJ,

NJ has the greatest interest and so NJ law will apply2. Currie’s approach

a. In normal cases, even with foreign elements, the court should apply the law of the forum

b. The court should determine the government policy of the law of the forum, then should judge whether the forum’s relation to the case provides for the assertion of an interest in the application of that policy

c. The court should determine the policy of the foreign law and whether the foreign state has an interest in the application of its policy

d. If the court finds that the forum has no interest, but the foreign state does, it should apply foreign law

e. If the courts finds that the forum has an interest, it should apply forum law, even if the foreign state has an interest

3. Lilienthanl v. Kaufman (OR 1964) a. Action to collect two promissory notes

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b. Notes executed and delivered by an OR spendthrift in California

c. OR voids notes made by one under guardianship for being a spendthrift

d. CA does not recognize disability of a spendthrifte. Court finds that CA has an interest in the outcomef. Court finds that OR has a strong public policy interestg. Court finds that OR interests must be advanced, applies OR

law4. Bernkrant v. Fowler (CA 1961)

a. Action for the cancellation of a note and reconveyance of property

b. P purchased property in NV from decedent and issued a note payable to decedent, decedent eventually promised to discharge the note in his will

c. Decedent died testate in CA, will did not cancel P’s note, D appointed executrix

d. In CA, the agreement to cancel the note, unless made in writing per the statute of frauds, would be invalid

e. In NV, the agreement is not covered by the statute of frauds and therefore valid

f. Court finds that there is no connection between CA and the agreement and no interest of CA in the same

g. Court finds that NV has an interest in the agreement; finds that NV law applies and the agreement is valid

5. Hurtado v. Superior Court (CA 1974) a. Action for writ of mandate to vacate ruling that the measure

of damages was CA law, without limitationb. Mexico law caps damagesc. Accident in CAd. P was resident of Mexico, Ds were residents of CAe. All vehicles registered in CAf. Court finds that it should apply law of forum, CA, as

Mexico has no interest in caseg. Court finds that Mexico’s interest is in protecting resident

Ds, not applicable because Ds are not Mexicanh. Court finds that CA’s interest is in ensuring recovery of Ps

iii. The “Comparative Impairment” Approach1. Bernhard v. Harrah’s Club (CA 1976)

a. Accident in NVb. P and D CA residents

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c. Ds intoxicatedd. Civil dram shop liability in CA, not in NVe. NV has criminal dram shop liabilityf. Court finds that NV interest is to protect tavern ownersg. Court finds that CA interest is to deter intoxicated driving,

to compensate Ph. Court finds that CA public policy would be impaired by

non-application of its laws and NV policy would be less impaired by application of CA law

iv. The “Better Rule” Approach1. Leflar Considerations

a. Predictability of Resultsi. Discourage forum shopping

ii. Encourage uniformity of resultsiii. Allow planning for transactions

b. Maintenance of Interstate and International Orderi. Facilitating cross-boundary transactions

ii. Minimum of mutual interference with sovereigntyc. Simplification of Judicial Task

i. Make task easy for courtsd. Advancement of the Forum’s Governmental Interests

i. Advance interested state’s policye. Application of the Better Rule of Law

i. Courts seek to apply “the better rule”ii. Courts are concerned with “justice in the individual

case” and “protection of justified expectations of the parties”

iii. Courts need not hide their choosing of the “better rule”

2. Milkovich v. Saari (MN 1973) a. Accident in MNb. P and D residents of Ontario, Canadac. MN has no guest statute, Ontario doesd. Court finds that the better rule is common law liability

rather than guest statutese. Court finds that MN is interested because it is a “justice-

administering” state and persons injured there would use MN medical facilities

f. Court applies MN lawv. The Restatement (Second) and the “Most Significant Relationship”

Approach

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1. §145. The General Principlea. Rights and liabilities of the parties with respect to an issue

in tort are determined by the law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6

b. Contacts, evaluated according to their relative importance with respect to the particular issue, to be taken into account in applying the principles of § 6 to determine the applicable law include:

i. The place of the injuryii. The place of the conduct causing the injury

iii. The domicil, residence, nationality, place of incorporation and place of business of the parties

iv. The place where the relationship between the parties is centered

2. §6. Choice-of-Law Principlesa. A court, subject to constitutional restrictions, will follow a

statutory directive of its own state on choice of lawb. Where there is no such directive, the factors relevant to the

choice of the applicable law include:i. The needs of the interstate and international systems

ii. The relevant policies of the forumiii. The relevant policies of other interested state and

the relative interests of those states in the determination of the particular issue

iv. The protection of justified expectationsv. The basic policies underlying the particular field of

lawvi. Certainty, predictability and uniformity of result

vii. Ease in the determinations and application of the law to be applied

3. Phillips v. GMC (MT 2000) a. Facts

i. Auto accident in KSii. KS has pro-D products liability

iii. P’s decedents and ward domiciliaries of MT, pre-accident

iv. MT has pro-P products liabilityv. Auto purchased in NC

vi. Auto designed, built in MI

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vii. P’s ward lives in NC, post-accidentb. Ruling

i. MT COLA is Restatement (2d) – Most Significant Relationship

ii. MT has no statutory directiveiii. Court finds that MT has most significant

relationship, applies MT lawiv. Court says that, in products liability and wrongful

death actions, law of place of injury, KS, presumptively applies unless another state has a more significant relationship

v. Court dismisses §6(2)(a), (d), (e) and (f) and §145(2)(d)

vi. Court finds §6(2)(b) and (c) most important1. Court says KS purposes not served by

applying its law to non-KS residents injured by non-KS products

2. Court says NC courts would not apply NC law

3. Court says MI purposes not served by applying its law when only connection is location of manufacturer

4. MT purposes are served by applying MT law to injuries suffered by MT residents

4. §186. Applicable Lawa. Issues in contract are determined by the law chosen by the

parties in accordance with the rule of §187 and otherwise by law selected by rule §188

5. §187. Law of the State Chosen by the Partiesa. The law of the state chosen by the parties to govern the

contract will be applied if the issue is one which the parties could have resolved by an explicit provision on that issue

b. The law of state chosen to govern contract will be applied even if it could not have been resolved by an explicit provision, unless:

i. The chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the choice, or

ii. The application of the chosen state law would be contrary to the fundamental policy of a state which has a materially greater interest and which under

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§188, would be the state of applicable law had the parties not chosen a state’s law

c. In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law

6. §188. Law Governing in Absence of Effective Choice by the Parties

a. The law of the state which, respect to a contractual issue, has the most significant relationship to the transaction and the parties, under §6, will govern

b. In the absence of effective choice of law of the parties, the contacts, evaluated according to relative importance, to be taken into account in applying §6 include:

i. The place of contractingii. The place of negotiating the contract

iii. The place of performanceiv. The location of the subject matter of the contractv. The domicil, residence, nationality, place of

incorporation and place of business of the partiesc. If the place of negotiating the contract and the place of

performance and in the same state, the local law of that state will usually be applied, except as otherwise provided in §§189-199 and 203

7. §203. Usurya. The validity of a contract will be sustained against the

charge of usury if it provides for a rate of interest that is permissible in a state to which the contract has a substantial relationship and is not greatly in excess of the rate permitted by the general usury law of the state of the otherwise applicable law under the rule of §188

8. Nedlloyd Lines BV v. Superior Court of San Mateo County Seawinds Ltd. (CA 1992)

a. P is incorporated in and has PPB in the Netherlandsb. D is incorporated in HKc. D’s PPB is in CAd. Contract had COL provision for HKe. Implied covenant of good faith in CA not in HKf. CA COLA is Restatement (2d)g. Court finds that HK has superior interest

i. HK has substantial relationship with parties, two of parties are incorporated in HK

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ii. Contract provision for COL HK had reasonable basis

iii. Application of HK law not contrary to fundamental policy of CA

vi. Choice of Law and the Internet1. AOL v. National Health Care Discount (D. IA 2000)

a. D PPB in IAb. P incorporated in DEc. P PPB in VAd. AOL servers in VAe. Spam sent from many statesf. Spam sent to many statesg. Cause of action, tort (conversion)h. COLA is Restatement (2d)i. Court finds §145 points to no specific statej. §6(2)(d),(e),(f) are less important in tortk. §6(2)(b),(c) more important: relevant policies of VA, IAl. VA law applies because AOL servers there, economic loss

sustained there2. NY v. World Interactive Gaming Corp. (NY 1999)

a. D located in NY, incorporated in DEb. $ sent from NYc. Gambling legal in Antilles, not NYd. Web gambling on servers in Antillese. D guilty of NY law against gambling

3. Jeri-Jo Knitwear, Inc. v. Club Italia, Inc. (SDNY 2000) a. P in NYb. D in Italyc. Ct. order v. Club Italia for ENERGIE TMd. D website w/ENERGIE logo in Italye. D website w/link to Italy website in USf. Ct. orders D to delink US site from Italy site

4. Licra and UEJF v. Yahoo (France 2000) a. D servers in USb. D France website link to US websitec. D US website auction w/Nazi memorabiliad. Law against Nazi symbols in Francee. Ct. finds that French law applies, even though servers in

USf. Orders Yahoo to block French users from US auction site

c. Constitutional Limitations on Choice of Law

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i. Due Process1. Home Insurance v. Dick (US 1930)

a. P lives in Mex.b. P citizenship in TXc. Insured chattel in Mex.d. Mex. Insurance in Mex.e. Re-insurance in NYf. Insurance policy has 1 year limitationg. TX law requires minimum 2yr. lim. periodh. Ct. rules that TX statute does not apply because contract

was not made in TX, not performed in TX2. Clay v. Sun Insurance Office, Ltd. (US 1964)

a. D does business in FL, IL et al.b. P purchased ins. in IL while IL citizenc. Ins. K had 1 year lim.d. P sustained loss in FLe. FL requires min. 5yr. lim.f. Ct. rules that ins. travels with insured and laws of new

domicil apply3. Allstate Insurance Co. v. Hague (US 1981)

a. Accident in WIb. Decedent was WI residentc. P was WI resident at time of accidentd. P moved to MN after accidente. MN court applied MN lawf. Ct. says if state has insignificant contacts with parties or

transaction, applying its own law is unconstitutionalg. Ct. ruled significant enough contacts to apply MN law

i. Dec. worked in MNii. Dec. commuted to MN

iii. P became MN residentii. Full Faith and Credit

1. Hughes v. Fetter (US 1951) a. Accident in ILb. P was administrator of Decedentc. P brought wrongful death action based on IL statute in WId. WI dismissed complainte. Ct. reversed saying against Full Faith and Credit

2. Wells v. Simonds Abrasive Co. (US 1953) a. P brought wrongful death action in EDPAb. Death in AL

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c. AL had 2yr. lim.d. PA had 1yr. lim.e. EDPA sitting in diversity applied PA lawf. Ct. affirmed saying that EDPA correctly applied PA COLA

3. State of Nevada v. Hall (US 1979) a. Accident in CAb. Ps were CA residentsc. D was employee of NVd. P brought in NV through respondeat superiore. D claimed sovereign immunityf. State Ct. denied sovereign immunity, awarded damages to

Pg. Ct. says NV could not claim immunity in accident with CA

citizens, on CA hwys. in CA Cts.h. Ct. says that Full Faith and Credit does not require CA to

apply NV statutory waiver of immunity cap on damages4. Austin v. New Hampshire (US 1975)

a. NH workers from out-of-state required to pay taxb. NH workers from in-state not taxedc. Ps brought class actiond. NH Ct. upholds taxe. US Ct. rules that tax violates Privileges and Immunities

Clauseiii. Other Constitutional Constraints

1. GD Searle & Co. v. Cohn (US 1982) a. Ps are NJ residentsb. D is DE Corp. w/PPB in ILc. Ct. held that NJ statute tolling lim. period for action against

foreign corp. that is amenable to juris. in NJ but has no one upon whom process can be served is not a violation of equal protection