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CONFLICT OF LAWS

PROFESSOR DAVID L. FRANKLIN

DEPAUL UNIVERSITY COLLEGE OF LAW

CHAPTER 1: INTRODUCTION; DOMICILE; CHOICE OF LAW

A. Introduction

• Three Concepts:

o Domicile;

o Choice of Law; and

o Recognition and Enforcement of Judgments

Exam Tip 1: Conflicts is a popular subject on the Multistate Essay Exam.

Exam Tip 2: Never tested on its own—often tested with family law

Exam Tip 3: Not subtle or hidden—usually easy to recognize, but there are

often no clear right or wrong answers

B. Domicile

• The most important way in which the law connects a __________________________ with a

particular _______________________________.

• Person can have _______________________________________________ domicile

• Domicile can be acquired in two ways:

1) By _________________________—a person must:

• _____________________________________ her previous domicile;

• Establish a ________________________________________________ in the chosen

domicile; and

• Have an ___________________________________________________________ for

an indefinite time

o Shown by the person’s actions and statements taken as a whole

o Relevant facts: owning real estate, voting, paying taxes, setting up a bank

account, registering a vehicle

Example 1: A farmer decides to move from West Virginia to Pennsylvania.

But he doesn’t move very far. He is going to live on a family farm, most of which

is in West Virginia. The small farmhouse where he’s planning to live is in

Pennsylvania. He gets to the small farmhouse, unloads his goods, and sets

loose his livestock to graze. Then he falls ill and goes back to West Virginia, to

recuperate. While there, he dies. What was his domicile at the time of death?

_________________________________________________________________

2) By ___________________

• For people who do not have the legal capacity to choose their domicile

• A child takes the domicile of ____________________________________________.

o Takes the domicile of the custodial parent if parents are in different states

o An emancipated minor can choose her own domicile.

• Corporations—Generally the state where it is _________________________________________

o Other contacts (e.g., the principal place of business) may prove relevant.

C. Choice of Law—In General

• A choice-of-law issue exists whenever the law of more than one jurisdiction arguably applies to

______________________________________________________________________________.

1. Terminology

o The state in which the lawsuit is brought: _________________________________________

o The law of that state: _________________________________________________________

o The law of another jurisdiction is called ___________________________________________

Note 1: Do not confuse choice of law with jurisdiction! Jurisdiction is whether

the court can decide a case. Choice of law is which law is used.

2. Approaches to Choice of Law

o State court will look to _____________________________ to determine which choice of law

rules to apply

o General Approaches:

3) ____________________________________________ approach (First Restatement)

4) ________________________________________Interest Analysis

5) Most Significant ________________________________ (Second Restatement)

Exam Tip 4: The exam will typically tell you which approach a forum state

follows. If it does not, you should briefly discuss all three approaches.

D. Traditional Approach

o Territorial—each state determines the legal effect of events that occur within its

__________________________________________

o As soon as a legally significant event occurs, a _____________________________________

becomes _______________________ under the laws of the state where it occurred.

o Generally, a court need only determine where the legal right vested and apply the law of

that place.

o A right vests when the ________________________ takes place that is necessary to give the

plaintiff a __________________________________________________________________.

Example 2: David and Victoria are a married couple who live in the state of

Tinnsylvania. One day David and Victoria are driving with their three sons in the

state of West Carolina. While checking himself out in the mirror, David

negligently drives into a ditch, and Victoria is injured. She sues David for

negligence in Tinnsylvania state court. West Carolina law contains a rule of

spousal immunity; wives cannot sue their husbands in tort. Tinnsylvania law

contains no such rule. Their courts have adopted the traditional approach to

choice of law. Should David be able to assert the defense of spousal immunity?

_________________________________________________________________

CHAPTER 2: CHOICE OF LAW (CONT.)

A. Governmental Interest Analysis

• A law applies to a set of facts if its application to those facts would promote the underlying

___________________________________ of the law.

• If the law of a state applies, the state is said to be ____________________________ in the case.

1. Determine Which States are Interested

o If only one state is truly interested, there is a ______________________________________.

 Court should apply the law of the ____________________________________________

o If more than one state is interested, there is a _____________________________________.

 Court should apply the law of the ____________________________________________

Note 2: In the governmental interest approach, the court is NOT supposed to

balance the interests of different states.

o If neither is interested (unprovided-for case), a court should apply the law of the

_____________________.

2. The Key to the Interest Analysis Approach

o Distinguish between ______________________________________________________ laws

and ______________________________________________ laws.

 Conduct-regulating laws—designed to regulate conduct (i.e., declare some conduct as

wrongful)

 Loss-shifting laws—determine who can or cannot be liable (e.g., immunity, vicarious

liability, etc.)

o States have an interest in applying a conduct-regulating law when the wrongful conduct

occurs ____________________________________________________, or when a state

domiciliary is injured (regardless of where).

o States have an interest in applying a loss-shifting law when doing so would

_______________________ a state domiciliary.

Example 3: Recall that David and Victoria are a married couple who live in

Tinnsylvania. They’re involved in a car accident in West Carolina in which

Victoria is injured. She sues David for negligence in Tinnsylvania state court.

West Carolina law contains a rule of spousal immunity; wives cannot sue their

husbands in tort. Tinnsylvania law contains no such rule. Tinnsylvania courts

have adopted the governmental interest analysis to choice of law. Should David

be allowed to assert the defense of spousal immunity? ____________________

_________________________________________________________________

B. Most Significant Relationship Analysis (Second Restatement)

• Apply the law of the state with the __________________________________________________

to the particular issue in question.

• Significant relationship—based on seven guiding principles

• Three guiding principles clusters:

1) Promoting the relevant ________________________ of the forum and other interested

states;

2) ______________________________ interests;

• Certainty, uniformity, ______________________________________, and simplicity

3) Protecting the ____________________________________________________________

of the parties

• Applies to ___________________ transactions (e.g., contracts, trusts, real property)

Exam Tip 5: Introductory Language for Second Restatement Answers:

The court must determine which state has the most significant relationship

to the issue in question. In making this determination, the court should

strive to promote the relevant policies of the forum and other interested

states, advance systemic interests such as certainty, uniformity,

predictability, and simplicity, and protect justified expectations of the

parties.

• For each type of issue (tort, contract, etc.) there is a list of _____________________ that courts

should consider in applying the guiding principles

o These are facts that connect the issue to a particular state.

• There are presumptions based on the type of issue.

Exam Tip 6: If no state has a more significant relationship, courts will

apply __________________________________ as a tie-breaker.

Example 4: Recall that David and Victoria are a married couple who live in

Tinnsylvania. They’re involved in a car accident in West Carolina in which

Victoria is injured. She sues David for negligence in Tinnsylvania state court.

West Carolina law contains a rule of spousal immunity; wives cannot sue their

husbands in tort. Tinnsylvania law contains no such rule. Tinnsylvania courts

have adopted the Second Restatement approach to choice of law. Should David

be allowed to assert the defense of spousal immunity? ____________________

_________________________________________________________________

C. Recurring Issues

1. Depeçage

Application of different states’ laws to _______________________________________________

within the same case

2. Renvoi

o When a court applies the law of another state, it applies the __________________________

of that state, including the state’s ______________________________________________.

 Applying the other state’s choice-of-law rules is called ___________________________

the renvoi

 Ignoring the other state’s choice-of-law rules is called ____________________________

the renvoi

Note 3: Accepting renvoi can lead to an infinite loop: If a North Dakota court

applies South Dakota law, including its choice-of-law rules, those rules might

point back to North Dakota law, including its choice-of-law rules, etc.

o All three approaches to choice-of-law generally ____________________ the renvoi

 Except—for issues involving property rights in _______________ courts generally accept

the renvoi

CHAPTER 3: TORTS AND CONTRACTS

A. Torts

1. Traditional Approach

o Governed by the law of the place where __________________________________________

 The last event necessary to create a tort is the _____________________

o Apply the law of the place of ______________________

Example 5: A car is defectively manufactured in Michigan. It is then

negligently repaired in Georgia. Finally, it breaks down and crashes in Florida,

causing injury to the plaintiff. As a result of his injuries, the plaintiff misses out

on a lucrative business opportunity in California. He sues the Michigan

manufacturer and the Georgia repair shop in Florida state court. Florida follows

the traditional (First Restatement) approach to choice of law. Which state’s tort

law should the court apply? _________________________________________

_________________________________________________________________

2. Governmental Interest Analysis Approach

o No special rules for particular areas of law

o Courts examine the purpose and policies that underlie the competing states’ laws to

determine whether those states are truly ________________________________________.

o Distinguish between conduct-regulating vs. loss-shifting laws

 Conduct-regulating laws—states have an interest when the wrongful conduct:

a) Occurs within __________________________________________________;

b) Causes ____________________ within the territory; or

c) Injures a ___________________________________ of the state.

 Loss shifting laws—states have an interest when it would ______________________ a

domiciliary.

Example 6: Thelma and Louise are domiciled in California. They drive

together to Texas, where Thelma negligently drives off the road, injuring Louise.

Louise sues Thelma in California. Thelma raises the defense that Texas has

enacted a so-called “guest statute,” which immunizes drivers against lawsuits by

passengers. The purpose of the statute is to protect drivers’ insurance

companies from fraudulent claims. Thelma’s car is licensed in California, and

that is where she bought her auto liability insurance. California has no guest

statute and follows interest analysis. Will the California court apply Texas’s

guest statute? ____________________________________________________

_________________________________________________________________

3. The Second Restatement

o Courts apply the law of the state with the _________________________________________

_______________________________________ to the issue, considering the seven guiding

principles.

o Contains a list of contacts to be balanced in tort cases:

1) The place where _________________________________________ occurred;

2) The place where the conduct _____________________________ the injury took place;

3) The ______________________, residence, or place of ___________________________,

of the parties; and

4) The place where the ____________________________ between the parties is centered

o Presumption: The law of the place of ___________________ will usually be applied, but can

be overcome if another state has a more significant relationship

B. Contracts

1. Choice of Law Clause

o Parties are free to choose the law that will govern their ______________________.

o Choice of law provisions are generally enforceable (i.e., “party autonomy”).

Example 7: A movie producer and a movie director are on location in Utah,

discussing their upcoming Western movie. They decide to make the movie

together and they execute a contract in Utah. The contract states that the

director shall do “all shooting in person on request.” Because both parties (and

their lawyers) are familiar with the ways of Hollywood, the contract states that

it shall be interpreted according to the rules of California contract law. During

the filming of the climactic shootout, the producer insists that the director fire

the gun himself. The director refuses and storms off the set, arguing that the

phrase “all shooting” in the contract was limited to shooting with the camera.

The producer sues the director in Utah state court for breach of contract. Utah

follows the Second Restatement. Which state’s law will the Utah court apply?

_________________________________________________________________

o Exception—________________________ of a contract cannot be resolved solely by the

parties’ choice of law

 Validity issues include: illegal subject matter, incapacity, and absence of formalities

a. Contract Validity (Second Restatement)

 Parties can choose the law that will apply to contract validity if:

• The chosen state has a __________________________________ relationship to the

parties or transaction; or

• There is some other _________________________________________________ for

the choice.

 Choice will be ignored if application of the chosen law would be contrary to a

______________________________________________________________ of the state

with the most significant relationship to the issue.

Example 8: Jimmy the Greek and Timmy the Geek are both citizens of New

Jersey. They want to bet $10,000 on the Super Bowl. Gambling contracts are

unenforceable in New Jersey, so they specify in the contract that the law of

Nevada will govern the agreement. Gambling contracts are enforceable in

Nevada. They place the bet in New Jersey. Timmy picks the Detroit Lions to win

the game. However, the Lions are not in the Super Bowl, so Timmy loses. But

Timmy refuses to pay. Jimmy sues him for breach of contract in New Jersey

court. New Jersey follows the Second Restatement approach to conflicts of law.

What law should the court apply? ____________________________________

_________________________________________________________________

Note 4: If the parties do not have an effective choice-of-law provision in the

contract, turn to the general approaches for choice-of-law.

2. Traditional Approach

o The place of _______________________________ will govern issues of contract formation,

interpretation, and validity

o Place of contracting—where the __________________________ necessary to create a

contractual right occurred (generally the place of __________________________________)

Example 9: Brittney is a former singing superstar who has fallen on hard

times. She lives in Georgia. Lady Gaga is an up-and-coming superstar who lives

in New York. Brittney calls Gaga on the telephone in an attempt to sell her

schoolgirl outfit from the “Hit Me Baby One More Time” video. Gaga says “I'll

give you $500.” Brittney says “Sold.” But then Brittney refuses to deliver the

outfit and Gaga sues her for breach of contract in Georgia, a traditional

approach (First Restatement) state. Under Georgia law, contracts like this one

must be in writing and signed by the parties in order to be valid. Under New

York law, the oral contract would be valid. Who wins? ____________________

_________________________________________________________________

o Issues related to the performance of the contract are governed by the place of

___________________________________________.

 Performance issues include: the manner of performance, sufficiency, and excuse

3. The Second Restatement

o Determine which state has the __________________________________________________

__________________________________ to the contract using the seven guiding principles.

o In addition, three contacts to be taken into account:

1) The place of contracting, ____________________________________, and performance;

2) The place where the __________________________________________ of the contract

is located; and

3) The location of the parties’ _____________________________, residences, places of

incorporation, or places of _____________________________________.

o Presumption: If the location of ______________________________________ and

___________________________________ are the same, the law of that state usually

applies.

Note 5: Presumptions for specific kinds of contracts are listed in the Outline.

Remember that these presumptions can be overcome if a state is found to have

a more significant relationship to the issue.

CHAPTER 4: PROPERTY, CORPORATIONS, AND FAMILY L AW

A. Property

1. Two Types of Property

1) ________________________________________________________________________

2) ________________________________________________________________________

a. Immovables

 Includes: __________________ and ___________________________ in land

 Under all three approaches, governed by the law of the place where the property

_________________________________________

• Second Restatement—still requires consideration of the seven guiding principles

o Most important principle: the justified __________________________________

of the parties

o Strong presumption in favor of the law of the _______________

 Court applies the ___________________ law of the state, including the state’s choice of

law rules (renvoi generally accepted)

b. Movables

 Divided into ________________________ and __________________________ property

1) Tangibles

• Most issues governed by the _____________________

o Allows parties to choose the applicable law

• If the UCC does not apply, turn to the general approaches

o First and Second Restatement: Apply the law of the state where the

__________________________ was located at the time of the transaction.

o Second Restatement still requires the seven guiding principles

2) Intangibles

• First Restatement—Apply the law of the state in which the intangible property was

_________________________________.

• Second Restatement—Look to the seven guiding factors

2. Succession of Property at Death

o First and Second Restatements—issues concerning distribution of immovable property at

death are governed by the law of the ________________________________.

o First and Second Restatements—issues concerning distribution of moveable property at

death are governed by the law of the ____________________________________________

at the time of ____________________.

o Exceptions:

 Many states will enforce a _____________________________ clause in a will or trust.

 Preference in favor of _______________________________

• If a will or trust is _______________ under the law of the place where it was made,

courts will generally enforce it.

B. Corporations

• Divided into: _____________________________________________________ and

________________________________________________________

• Internal Affairs—concern the rights and obligations of the participants in the venture

o Governed by the law of ________________________________________________________

• External Affairs—involve transactions with third parties outside the corporate venture.

o Corporation is treated like ______________________________________________

o Second Restatement contacts: the place of incorporation and principle place of business are

potentially relevant

C. Family Law

1. Marriage

Exam Tip 7: Marriage is frequently tested.

a. Traditional Approach

 Validity is governed by the law of the place where the marriage was

_____________________________________

Example 10: If California permits common law marriages, then all other states

should recognize a common law marriage entered into in California.

 Exception—If the marriage violates a particularly strong __________________________

___________________ of the domicile of either party, the court ___________ refuse to

recognize it.

Example 11: A state statute or constitutional provision may outlaw particular

forms of marriage like polygamy or incestuous marriage.

Note 6: The public policy exception is often enforced when the parties married

in another state in order to evade restrictive laws in their state of domicile.

Example 12: Suppose that Arizona outlaws incestuous marriage between

second cousins, but Utah allows it. Arizona will probably recognize the validity

of a marriage celebrated in Utah between two Arizona domiciliaries who are

second cousins. On the other hand, Arizona would probably refuse to recognize

a marriage between siblings because that marriage is a more serious violation

of Arizona’s public policy.

b. First Restatement

 Makes a distinction between validity of marriage and the incidents of marriage

 Incidents of marriage—rights that come from marital status

• Determined by the law of the place where they are __________________________

_________________________________________________

 State may recognize some incidents of marriage but not others, or refuse the validity of

a marriage but enforce the incidents

Example 13: In one case, California enforced a will that divided the property of

a foreign decedent to his multiple wives, even though California did not

recognize polygamous marriages.

c. Second Restatement

 A marriage that is valid where celebrated will be valid ___________________________.

 Unless it violates the public policy of the state with the ___________________________

________________________________________________________ with the parties at

the time of marriage

2. Marital Property

o Any interest in property that one spouse acquires in the property of the other spouse by

virtue of marriage other than an expectation of inheritance

o Immovable property—governed by the law of the state where the ____________________

__________________________________________________

o Movable property—governed by the law of the state where the couple ________________

_________________________ at the time of ______________________________________

 Community property remains community property, even if moved to a non-community

property state.

 If marital funds or property are used by one spouse to acquire property in another state,

the acquired property has the same _____________________________________ as the

____________________ or _________________________ used to acquire it.

Example 14: If a wife in a community property state purchases a house in a

separate property state using community funds, the house is community

property.

CHAPTER 5: PROOF OF FOREIGN LAW AND DEFENSES

A. Pleading

• Traditional approach—laws of another state or country were not considered law at all

o Considered ______________________ to be proven in court

o If party failed to plead and prove foreign law, the court would apply ___________________

law or ______________________ the case

• Modern approach—most states allow courts to take ___________________________________

_______________________ of the laws of other states.

• Federal courts must take judicial notice of the laws of ___________________________, but they

require pleading and proof of __________________________________________________ law.

B. Defenses

1. Penal Law Exception

o Under all three general approaches—court ______________________ enforce the

____________________ laws of another state

o Laws that provide for ____________________ recovery are not considered penal laws.

o Tax laws ______________ penal laws.

2. Public Policy Exception

o First and Second Restatements—court may refuse to apply foreign law if that law violates a

_________________________________ and ______________________________________

public policy of the forum state

o This is a narrow defense; applies only if enforcement of foreign law would violate the

forum’s principles of justice or deep-rooted morals or traditions

o If successful, the result is ______________________________________________________

____________________________

o Can be used to reject a foreign cause of action, but not a foreign ______________________.

Example 15: During the Nazi era, a German-Jewish employee brought a

wrongful discharge claim in New York court against his German employer. The

employer defended against the claim by pointing out that Nazi law required him

to fire all of his Jewish employees. The New York court found this defense to be

against public policy, but allowed the defense.

3. Substance v. Procedure Distinction

o _________________________________ always governs procedural.

Example 16: The plaintiff is suing on a Mississippi contract in an Alabama state

court. Alabama requires briefs to be bound, but Mississippi allows staples.

Alabama follows the First Restatement of conflicts. Must the briefs be bound?

_________________________________________________________________

o General principle—substantive laws regulate people’s behavior _______________________

court, and procedural laws regulate people’s behavior ___________________ court

a. Parol Evidence Rule

 A _____________________________________ rule

 Purpose—make sure that people reduce their contracts to writing

 Governed by the law of the state that governs the issue of contract validity

b. Evidentiary Privileges

 First Restatement—the existence and validity of a privilege are considered

_______________________________________ issues.

• Governed by _________________________ law

 Second Restatement—the law of the state with the most significant relationship with

the communication should apply.

• Strong presumption in favor of the law that would __________________ admission

of the evidence

c. Damages

Example 17: Damages Cap: A law that states no more than $250,000 in

punitive damages may be recovered on a medical malpractice claim.

 First Restatement—treats the measure and type of damages as a

______________________________________ issue

• Statutory limits on damages are considered ________________________________.

 Second Restatement—governed by the law of the state with the most

______________________________________________________________ to the issue

• A damage cap is a _______________________________ rule to protect defendants.

• Under interest analysis and the Second Restatement, a state will generally apply its

own damage caps only to protect a defendant domiciled in that state.

d. Statute of Limitations

 First Restatement—considered ____________________________

• Exception: the statute of limitations is inextricably bound up with a

________________________________________, in which case it is considered

______________________________________

Example 18: A wrongful death statute contains a limitations period from the

place of the injury. The period is treated as substantive.

 Second Restatement—generally, forum applies its own statute of limitations if it would

____________________ the claim

• If the forum statute of limitations would permit the claim, it should apply unless:

o Maintenance of the claim would serve __________________________________

__________________________________________________ of the forum; and

o The claim would be barred under the statute of limitations of a state having a

_________________________________________________________________

with the issue.

4. Borrowing Statutes

o Bar suits on foreign causes of action that are precluded under the shorter of:

 The ______________________________ statute of limitations; or

 The statute of limitations of the place where the cause of action arose.

CHAPTER 6: CONSTITUTIONAL LIMITATIONS ON CHOICE OF LAW

• A state may apply its own substantive law to an issue only if the state has a significant

______________________ or ___________________________________ of contacts with the

issue such that application of its own law is neither _________________________ nor

______________________________________________________________________.

o The choice of law analysis is different from the personal jurisdiction analysis.

o This rule enforces both the ________________________________________ Clause and the

__________________________________________________________ Clause.

o The forum state is entitled to apply its own __________________________________ law to

any issue that is traditionally viewed as _________________________________.

Example 19: Willie is married to Minnie. They live in Wisconsin. Willie

commutes to work every day in Minnesota. Willie is killed in an auto accident in

Wisconsin. The driver of the other car was also a Wisconsin resident. After his

death, his widow Minnie moves to Minnesota and sues Willie’s insurance

company seeking damages from the accident. The insurance company does

business in all 50 states. Can the Minnesota court constitutionally apply its own

substantive law to the case? _________________________________________

_________________________________________________________________

Example 20: A class action is brought in Kansas state court on behalf of 28,000

class members alleging that they are entitled to delayed royalty payments from

natural gas leases. Fewer than 1,000 of the class members are Kansas

residents, and less than one percent of the leases are located in Kansas. Can

the Kansas court constitutionally apply the substantive law of Kansas to all the

claims? _________________________________________________________

_________________________________________________________________

Example 21: On the same facts as the last example, can the Kansas court apply

its own statute of limitations to all 28,000 claims? _______________________

_________________________________________________________________

• Under the Full Faith and Credit Clause, a state may not refuse to entertain claims under another

state’s law simply because that law _________________________________________________.

CHAPTER 7: STATE LAW IN FEDERAL COURT

A. In General

• Federal courts exercising federal question jurisdiction always apply

____________________________________________.

• Erie Doctrine—Federal courts exercising diversity jurisdiction must apply the substantive law of

_______________________________________________________________ as the law has

been interpreted by the highest state court.

Example 22: Pete from Pennsylvania sues Della from Delaware to recover for

an alleged tort that took place in Delaware. He sues her in the federal district

court for the Eastern District of Pennsylvania under federal diversity jurisdiction.

What law should the Pennsylvania federal court apply to this tort case?

_________________________________________________________________

o The federal court generally looks to rulings of the state’s highest court

o If state substantive law is unclear the federal court must look to other court decisions to

determine how the highest court would rule on the issue.

B. Substantive Laws vs. Procedural Laws under Erie

• Substantive law—any state law that defines the _______________________________________

and ____________________________________ of the parties

o E.g., the elements of a claim, elements of a defense, burdens of proof

• Procedural law—applies only in _______________ court, not _______________________ court

Note 7: The substance v. procedure analysis for choice-of-law is different than

the analysis for the Erie doctrine.

• Statutes of limitations:

o Under traditional choice of law analysis—________________________________

o For Erie purposes—___________________________________

• Purpose of Erie—to prevent plaintiffs from forum shopping

Example 23: Recall the facts from the last example. Imagine that Pete has not

sued Della yet, and the Pennsylvania statute of limitations has already run. If

federal judges were free to apply a more lenient rule, Pete’s case might still be

live in federal court.

• A state statute is substantive under Erie if it is _________________________________________

______________________________________ (in a direct and certain enough way that it

encourages forum shopping between state and federal court).

• Wrinkle 1—A state law that is ______________________________ substantive (i.e., outcome

determinative without defining rights or obligations of the parties)

o May apply judge-made federal common law after a balancing test

Example 24: The facts of Pete’s tort action against Della would be decided by a

judge in Pennsylvania state court, but would be decided by a jury in a federal

court. If Pete files in a Pennsylvania federal court under diversity jurisdiction,

will the facts be decided by a jury? _________, because even though the state

rule is outcome determinative, the federal interest in providing jury trials

supersedes the state rule.

• Wrinkle 2—A ___________________________________________________________, such as a

federal rule of civil procedure or evidence, applies directly to the issue in question

o The federal rule ______________________ be applied in federal court.

Example 25: Pennsylvania state law requires Pete to serve Della with service in

person. Federal Rule of Civil Procedure 4 allows plaintiff to serve defendants by

mail. Pete, as always, files a diversity action against Della in federal district

court in Pennsylvania. Must he serve her in person? ______________________

_________________________________________________________________

C. The Klaxon Rule

• A federal district court in a diversity case must apply the choice-of-law rules of ______________

________________________________________________________________.

Example 26: Pete is suing Della in federal court in Pennsylvania for a tort that

happened in Delaware. Suppose Pennsylvania follows the First Restatement of

Conflicts, while Delaware has adopted the most significant relationship

approach. Which state’s tort law should the federal court apply? ___________

_________________________________________________________________

• Exception—If a diversity case was properly filed in a federal court in one state, but then

transferred to a federal court in another state pursuant to the Federal venue statute, then the

________________________________________ choice-of-law rules apply.

CHAPTER 8: RECOGNITION OF FOREIGN JUDGMENTS

• Terminology for this chapter:

o First state in which judgment was rendered—rendering state

o Second state in which enforcement is sought—enforcement state

A. Full Faith and Credit

• A judgment from another state _______________________ be given the ___________________

effect that it would be given by the courts of the rendering state.

• All kinds of judgments are protected by the Full Faith and Credit Clause.

1. Preclusion

o Claim Preclusion (__________________________________________________________)

o Issue Preclusion (____________________________________________________________)

o Judgment must be ______________________, _____________________, and ___________

_______________________________________

o There is no public policy __________________________ to enforcing sister state judgments.

Example 27: Imagine Mississippi law makes it a crime to enter into gambling

contracts and makes such contracts void. Two Mississippi residents nonetheless

enter into such a contract in Mississippi. The winner of the bet then sues the

loser on the contract in Missouri, having somehow obtained personal

jurisdiction over the defendant. The Missouri court purports to apply Mississippi

law, but it completely ignores the fact that Mississippi law makes the contract

illegal and void. The Missouri court awards a judgment to the plaintiff. The

plaintiff brings the judgment back to Mississippi for enforcement. Must it be

enforced? ________________________________________________________

_________________________________________________________________

2. Last in Time Rule

o Arises when a valid, final judgment is inconsistent with another valid, final judgment

o The ____________________________________ judgment is entitled to full faith and credit.

Example 28: The winner of the bet sues the loser first in Mississippi. Naturally,

he loses, since the contract is void under Mississippi law. Now he goes to

Missouri and sues again. The Missouri court ignores the contrary judgment and

awards a judgment to the plaintiff. The plaintiff brings the Missouri judgment

back to Mississippi for enforcement. Must it be enforced? _________________

_________________________________________________________________

3. Judgment Requirements

o Valid—rendered by a court with proper __________________________________________

 A judgment by a court without jurisdiction _________________ entitled to full faith and

credit.

• Exception applies only if the issue of jurisdiction _____________________________

_________________________________ in the original action

 ____________________________ fraud—i.e., bribing the judge

• Judgments that are the result of extrinsic fraud _____________________ entitled to

full faith and credit.

o Final—No outstanding appeals; the judgment is not _________________________________

o On the Merits—Substantive issues were decided by a court

 Includes: judgment after trial, summary judgment, dismissal on the merits, and a default

judgment

 Excludes: dismissals for lack of jurisdiction and dismissals without prejudice

B. Special Categories of Judgments

1. Workers' Compensation

o If an employee gets an award in State A, he can still get a supplemental award in State B,

unless the law of State A bars additional recovery using ______________________________

______________________________.

o Administered by state agencies of limited jurisdiction, so an award does not normally

preclude additional recovery

2. Divorce Decrees

o A divorce is a judgment.

o At least one spouse must be _______________________________ in that state.

o If court has _____________________________________________________________ over

both spouses, the divorce judgment is called a “___________________ divorce decree.”

 Entitled to full faith and credit

o If the court has personal jurisdiction over only one party and not the other, it is called an

____________________________ divorce.

 The party seeking ex parte divorce must establish __________________________ in the

forum state.

• Most states also add a durational residency requirement.

 Entitled to full faith and credit, even though there was no personal jurisdiction over the

absent spouse.

• The enforcing state does not have to give full faith and credit to the divorcing state’s

determination of _________________________.

• Applies only to the divorce decree itself; orders other than the dissolution of marital

status are valid only if the court had personal jurisdiction over __________________

__________________________

o Orders related to the divorce include decrees affecting property, alimony, child

custody, and child support

o Known as the “Divisible Divorce Doctrine”

3. Child Custody and Support Decrees

o Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)—One state gets

exclusive jurisdiction to make the ________________________ custody decision

 Usually the child’s “home state” or state of domicile

 All other states must give full faith and credit to that decision.

o Can only be modified by a new state if:

 The original state no longer has a ____________________________________________

_______________________________ to the child or parents; and

 The new court meets the test for exclusive jurisdiction

4. Foreign Country Judgments

o Not subject to full faith and credit

o Usually enforced as a matter of ____________________ (mutual respect among sovereigns)

o In some cases, American courts have refused to enforce foreign country judgments where

the underlying law was _________________________________ to the forum’s public policy.

o Uniform Foreign Money Judgment Recognition Act (adopted in most states)

 Foreign __________________ judgments are enforceable in the same manner as sister

state judgments

 Foreign ____________________________ judgments are not covered by the statute but

are usually enforced under comity

GOOD LUCK ON THE EXAM!

[END OF HANDOUT]

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