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Conflicts of Law
Temple University School of Law
Little, Laura E.

Conflict of Laws Outline 2014
Professor Little
I.                   Introduction
a.       There are three legs of the Conflict of Laws stool:
                                                              i.      Personal Jurisdiction
1.      Judicial
                                                            ii.      Choice of Law
1.      Legislative
                                                          iii.      Recognition of Judgments
1.      Enforcement jurisdiction
b.      There are two different types of conflict when looking at conflicting laws:
                                                              i.      Vertical conflict:
1.      Federal government laws conflict with state government laws.
                                                            ii.      Horizontal conflict:
1.      Conflicts of laws between different states; this is the most common.
II.                Personal Jurisdiction
a.       Courts have personal jurisdiction over persons who have a fixed legal status (domicile) with the state or country where the court sits.
b.      The Due Process Clause establishes outer limits to the exercise of personal jurisdiction.
c.       Pennoyer said that every state was its own independent sovereign.
                                                              i.      Have to put this idea together with the due process clause.
                                                            ii.      When a court lacks personal jurisdiction, it is action unfairly in accordance with the due process clause.
                                                          iii.      The attempt by Oregon to bind the nonresident defendant who was not served personally in the state’s territory was an impermissible attempt to control persons and things beyond the limit of the state.
                                                          iv.      What was Unconstitutional in Pennoyer?
1.      It was a negative holding: a default judgment in a n action in personam obtained by constructive service on a nonresident who does not appear is VOID.
a.       Default (no appearance or consent)
b.      Action in personam
c.       Constructive service
d.      Nonresident defendant
                                                                                                                                      i.      ALL OF THESE RENDER A JUDGMENT VOID
                                                            v.      What was Constitutional in Pennoyer?
1.      Personal jurisdiction is not unconstitutional when:
a.       The defendant was personally served in the state;
b.      The defendant was a resident of the state
c.       The defendant appeared in response to the summons and submitted himself to the power of the court;
d.      The action was in rem and commenced by the judicial seizure of property located in the state.
III.             Minimum Contacts
a.       International Shoe Test:
                                                              i.      Said that they want to be fair to the litigants, and they look at contacts (minimum contacts); not just presence in the state.
1.      This was because courts were reaching very far when considering presence in jurisdiction.
                                                            ii.      “Due Process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’”.
b.      In Rem Jurisdiction:
                                                              i.      PURE:
1.      In Rem actions are civil lawsuits that are commenced by “suing” the property or thing and joining persons who have an interest in the property as parties.
a.       Condemnation proceedings, mortgage foreclosures, etc.
2.      Pure In Rem directly concerns the thing that is seized.
3.      Even for actions that require minimum contacts, Pure In Rem establishes minimum contacts through the property through the claims that concern the property.
                                                            ii.      Quasi In Rem:
1.      These actions do not directly concern the property that is being seized.
c.       Notice
                                                              i.      It is constitutionally required by the Due Process clause that “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
IV.              General and Specific Jurisdiction
a.       Helicopteros v. Hall
                                                              i.      Helicopter Service in South America, crashes in Peru and ends up killing for Americans.
1.      The suit is subsequently brought in Texas.
a.       The question is whether the Texas court has personal jurisdiction over the defendant.
                                                            ii.      Contacts with Texas:
1.      The CEO of Helicol visited Texas for negotiations over the services being offered.
2.      Pilots and personnel sent for training in Texas.
3.      Payments were drawn from a U.S. bank.
a.       Helicol received checks drawn on Texas bank.
                                                              i.      General – continuous and systematic activity within a forum state will grant a court general jurisdiction. Need not be related to the defendant’s actions in a state; personal service works.
1.      It is dispute blind, meaning that it doesn’t matter what happened so long as there is continuous and systematic activity in the forum.
                                                            ii.      Specific (Minimum Contacts) – it has been said that when a State exercises personal jurisdiction over a defendant in a suit arising out of, or related to, the defendant’s contacts with the forum, then the state is exercising “specific” jurisdiction over the defendant.
1.      Court looks at
a.       Quality of contracts
b.      The specific dispute
                                                                                                                                      i.      Some specific relation to what happened in the jurisdiction.
c.       Arise Out of v. Related To
                                                                                                                                      i.      Arise out of has a higher burden
1.      But it does better to distinguish jurisdiction.
c.       Goodyear Dunlop v. Brown
                                                              i.      This is where the Supreme Court distinguished between “general

                             ii.      The defendant knew or should have reasonably known that his products might enter New Jersey.
1.      Look to the defendant’s actions not his expectations.
                                                          iii.      There is disagreement between the judgments.
1.      The O’Connor lowest common denominator test seems the way to go.
                                                          iv.      Kennedy talks about the U.S. being a distinct sovereign, and that someone might avail themselves to the country, just not the states.
1.      He also says that Congress should enact legislation when they are empowered to do so.
2.      Rule 4k(2) says that when you have a claim in a law suit that arises, you can have jurisdiction in a court of the US based on nationwide contacts, so long as there is no individual state that may have personal jurisdiction. Need:
a.       Federal Question
b.      Enough contacts within the US to meet constitutional standards.
c.       No state with sufficient contacts to meet constitutional standards.
                                                            v.      Four judges emphasized that foreseeability alone is not enough; and stream of commerce alone is not enough.
1.      It can be used to strengthen a personal jurisdiction case though.
f.       Applying specific and general jurisdiction tests
                                                              i.      When in doubt explore both possibilities:
1.      Specific: apply the two part test
a.       Minimum contacts and
b.      Fairness and reasonableness
2.      General: Continuous and systematic business activity in the state.
a.       Would the five reasonableness factors prevent jurisdiction? (WWV)
V.                 Transient Jurisdiction
a.       Burnham v. Superior Court of California
                                                              i.      The presence of person is not the majority opinion.
1.      What the court is looking at is the temporary physical presence in a state to see if it satisfies personal jurisdiction.
                                                            ii.      Shaffer v. Heitner holds that a single contact is not ok and minimum contacts needs to be satisfied.
1.      Burnham gives the Supreme Court the ability to re-examine the transient jurisdiction test.
                                                          iii.      Wife and husband divorce and wife goes to California with the kids.
1.      Husband takes a business trip to California and while he is there he sees the kids and is served with papers relating to the divorce proceedings.
a.       He was saying desertion instead of the originally agreed upon “irreconcilable difference”.