Conflicts of Laws
Spring 2005 (Goodman-TUJ)
I. Introduction
A. Common Law Class
1. Judge made rules in conflict of laws
2. Conflict of laws revolution in 1960-ish
3. RST 2nd of Conflicts of Law supposed to say what law is
-written by the American Law institute
B. Three Major Questions/ Subjects
1. Where can Plaintiff Sue? (jurisdiction)
2. What Law will Court Apply? (choice of law)
3. What effect does the Judgment have (full faith and credit)
II. Jurisdiction
A. Subject Matter Jurisdiction
1. State court system has the general authority to deal with any case
a. In personam – when person is inside territory
b. In Rem – dispute over property/land that is physically within the territory
2. Federal Courts have limited jurisdiction
a. Federal question (plaintiff relying on federal law to win case)
– can also be heard in state court unless statute specifically
requires federal court to hear (i.e. patents)
b. cases against foreign ambassadors or ministers
– Fed handles foreign relations so has jurisdiction over
diplomatic issues
c. Cases against Federal employees
d. Diversity cases
– Every Plaintiff from different state as Every Defendants
– due to fear of unfair treatment in the state courts
– requires $75,000 dispute
3. Court has it or doesn’t – can not be waived!!!
à FYI-Personal Jurisdiction can be waived and a person can give
the court jurisdiction over himself
B. Supremacy Clause
1. where federal government has power, it has absolute power
2. State laws that conflict with federal laws are overruled
3. Federal law always trumps
C. Importance of Forum
1. Whose law will apply – forum shopping
2. Who will be the plaintiff – gets to choose forum
( i.e. Florida docket so crowded with criminal cases that it takes
years to get a civil case heard – stall time to negotiate)
D. Definition of Law
1. Must distinguish between substantive and procedural law
2. Procedural law is always the law of the forum
3. Statute of limitations could be either or both
a. if it limits the scope of a new substantive right then it is part of
the substantive law.
E. CASES
1. Need service of process to bring a person into th
are seen as waiving jurisdiction- this is the procedure to say that you are
only appearing to say that the court does not have the authority over you
– most courts have abolished b/c as long as your first filing raises
jurisdictional argument you are not seen as waiving it.
2. Ct. says physical presence in the state is enough to subject you to
jurisdiction (in response to husband’s International Shoe “no minimum
contacts” argument).
a. Scalia – historical tradition must be upheld And the basis for
jurisdiction has always been physical presence
b. Brennan – Disagrees with historical analysis always being
dispositive, but agree in this case because sees minimum
contacts in use of roads and protection by police
3. Fundamental philosophical argument over the authority/ role of the
court in democracy;
a. Scalia- not the role of the court to change traditional state
