Conflicts of Law Outline

Conflicts of Law Outline
Prof. Pearson
Spring 2008
1) Jurisdiction of Courts
a) Legislative Jurisdiction versus Judicial Jurisdiction
i) Legislative Jurisdiction – Ability of the court to apply certain laws, authority of the court to apply any substantive law, statutes and common law
ii) Judicial Jurisdiction – Ability to reach out and grab an individual (PJ); Ability of the court to reach out and grab a certain case (SMJ)
(1) Money limits in courts, federal diversity cases need to be met in $
(2) General versus limited jurisdiction
b) Due Process Check
i) Jurisdictional Checklist
(1) Does a Traditional Basis Give Jurisdiction over ∆? Do we even have to do a jurisdictional analysis when there is traditional jurisdiction? Safe answer is “YES”
(a) Was a ∆ served with process in forum? FRCP 4. A defendant may be subject to the personal jurisdiction of the forum state if he is served with process in the forum state, regardless of why he was there or for how long he was there.
(i) Possible Application of Minimum Contacts & Fairness Test—A number of Supreme Court justices believe that personal jurisdiction based upon service of process in the forum should have to withstand analysis under the minimum contacts and fairness constitutional test.
(ii) Inapplicability of Service of Process to Corporations—The service of process rule does not apply to corporations, i.e. a corporation may not come within the personal jurisdiction of a court simply because one of its agents was served while in the forum state.
(iii)Exceptions to the Service of Process Rule—Personal jurisdiction may not be exercised over a defendant who is served with process in the forum state under the following circumstances:
1. defendant is attending a trial as a witness, party, or attorney
2. defendant is in the forum state because of trickery, force, or fraud
(b) Is the forum the Residence/Place of Business/Place of Incorporation in State of the ∆?
(i) A ∆ is subject to the personal jurisdiction of a court if…
1. a natural person, ∆ is domiciled in the forum state
2. a corporation, ∆ is incorporated in or doing business in the forum state
(ii) Domicile of a Natural Person—In order for a state to be considered one’s domicile, the person must have shown two things: physical presence and an intention to remain.
(iii)Doing Business Different Than Transacting Business—A corporation doing business in a state is a corporation with systematic and continuous business activities in a state. Many times a corporation will have to be licensed to “do business” in a state.
(c) Did ∆ “consent” to jurisdiction? A defendant may consent to the personal jurisdiction of a court in the following manners:
(i) by voluntarily making a general appearance in the court
(ii) failing to raise a defense of personal jurisdiction to a lawsuit
(iii)by consenting to personal jurisdiction by means of a contractual relationship with another party
(iv)by designating an “in-state” agent for purposes of accepting process
(2) If there is no traditional basis, does Long-Arm Statute Give Jurisdiction? There are three types:
(a) Enumerated Acts Statutes—list the acts taken by a person or corporation that will bring that person or corporation within the personal jurisdiction of the forum. The following are typical acts listed in an enumerated statute:
(i) transacting any business in the state
(ii) contracting to supply services or things in the state
(iii)causing tortious injury by an act or omission in the state
(iv)causing tortious injury in the state by an act or omission outside the state if regularly doing or soliciting business, engaging in any other persistent course of conduct, or deriving substantial revenue from goods used or consumed in the state
(v) having an interest in, using, or possessing real property in the state
(vi)contracting to insure any person, property, or risk located with the state
(b) Constitutional Limits Statutes—state that a court may exercise jurisdiction to the extent allowed by the United States Constitution and the cases decided by the Supreme Court.
(c) Hybrid Statutes— normally contain a number of enumerated acts, and then end with any act that would allow the state to exercise jurisdiction within the limits of the United States Constitution.
(3) Is Exercise of Jurisdiction Constitutional?
(a) It is a separate step regardless of whether you are discussing traditional jurisdiction or long-arm jurisdiction
(b) The reason why we need this check is because of situations like Burnham, there is a question of fairness regarding whether the state should exercise jurisdiction
ii) Personal Jurisdiction in General
(1) ∆ always moves for lack of PJ, ∏ consents when he files suit
(2) The non-moving party, the ∏, has the burden to show sufficient contacts
(a) Could look to: Due Process Clause, 14th Amend., International Shoe
(3) Two types of In personam Jurisdiction [Long Arm Statutes] (a) General Jurisdiction – ∆’s general activities toward forum
(b) Specific Jurisdiction – ∆’s specific activities toward forum
(4) Regardless of which one we use for fairness, there must be a statute reaching out,
(5) These must be tested against the elements of the long arm statute and the due process clause (limits of long arm is the limits of the constitution); Two types:
(a) Specific act Long Arm Statute and
(b) World-Wide Statutes
(6) Every state has a statute that gives the court limited jurisdiction on you for driving and committing a tort within that state (Car Accident); the limits of statutory jurisdiction à cause of action must arise out of the contacts
iii) Evolution of Due Process—Personal Jurisdiction is based on the courts power of the person.
(1) *All of the foregoing deal with Specific Jurisdiction* The “Traditional Power” Theory—Courts’ power over the person and property—Exclusive Sovereignty
(a) 14th Amendment, § 1—All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(b) There are two issues within Personal jurisdiction
(i) Due Process considerations, and
(ii) Sovereignty
(c) Ways Personal Jurisdiction cannot be obtained
(i) Cannot kidn