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Conflicts of Law
Temple University School of Law
Green, Craig

-Dred Scott case: a conflicts of law case; previous doctrine provided that if you did not stay for a long period of time that the law of the southern state would govern the status of slaves brought north with their masters for the summer; northern courts then began taking the position that upon entering free territory, the positive law of the free states determined the status of the slaves that went there, and that once they entered the free state the slave’s status became free even after they left the state;
-the south responded by arguing that the slaves became slaves again after they returned to the south (so that if you adjudicated the issue in MO or VA, the slave law of that state applied; if you adjudicated in IL, the person was free);
-this battling law of the forum deteriorated rapidly;
-a major problem was that you had co-equal sovereigns, there was no reason to break the tie between IL and VA
*we no longer have struggles b/w the states regarding slave status, but we do have a current-day ‘Dred Scott’ – same sex marriage, and disputes b/w states over the status of couples – without resolution of this dispute, the status of couples blinks ‘on’ and ‘off’ as married or not as they move from state to state
-this course looks at power struggles, which take place in the form of:
            -choice of law problems (legislative jurisdiction)
            -personal jurisdiction
-complicated organization of power in this country: fed govt + 50 states
à system of jurisdictional concurrency – several jurisdictions have concurrent ability to regulate particular affair – conflicts of law looks at where they clash, where have 2+ states or state and fed govt claiming ability to regulate
-horizontal conflicts: state-state conflicts
            -vertical conflicts: state-federal conflicts (governed by Erie doctrine)
-personal jurisdiction questions apply to both of these conflicts – for the most part this is the same analysis between horizontal and vertical contexts
-judgments, as well, arise in both conflicts; here as well principles are relatively uniform between horizontal and vertical contexts
Personal Jurisdiction
-Pennoyer v. Neff: touchstone was presence in the state – if in state, state had personal jurisdiction; case connected personal juris to DPC, to say that if a state tried to exercise power outside its territory, it was acting in violation of DPC
*no longer law, b/c changes in society, tech, economy, etc – idea of states as masters of finite territories and of ppl only when inside territory broke down
à Hess, certain actions indicate ‘consent’ to personal jurisdiction of state, etc
*International Shoe (1945): USSC rephrased question as whether the exercise of a state’s power over parties comports with fair play and substantial justice
*look at contact to determine if jurisdiction comports w/fair play and substantial justice à substantial contacts test
-Helicopteros Nacionales de Colombia v. Hall: Colombian helicopter company provides services to corporation operating in Peru, there is a crash, US-TX citizens die and a suit is filed in TX state ct; Helicol had some contacts with TX: purchased helicopters in TX, including helicopter in crash; trained pilots, maintenance and management personnel in TX; service, checking on helicopter building in TX; contract for helicopter service negotiated in TX; checks were drawn in TX
*parties here conceded that the case d/n arise out of or relate to the contacts with Texas, so the court skipped over the possibility of specific jurisdiction completely
*need continuous and systematic contacts for personal jurisdiction – d/n have
-Brennan’s dissent: H received benefits from contact w/TX à should be subject to personal jurisdiction; H’s contacts w/TX were related to suit, ct should distinguish b/w contacts related to suit and those that give rise to suit – although accident d/n arise from contacts, it was related to them, à specific jurisdiction
*general jurisdiction: where you have so many contacts with a state that a suit can be brought in that state even if it does not relate to your contacts – need continuous and systematic activity; the jurisdiction is dispute blind, in that it does not depend at all on the subject of the suit, and depends only on the quantity of the contacts
-look at contacts b/c looking for justification for the state imposing its jurisdiction – quid pro quo, any ‘benefit’ from state à state can impose jurisdiction
*specific jurisdiction: state has jurisdiction because the suit was related to or arose out of the contact(s) you did have – looking at the quality of the contact, contact-specific, number of contacts d/n matter (just one can be enough)
-difference b/w arise out of and relate to: arise out of: closer to the state in terms of impact and control; in these situations, plaintiff is more likely to be related to contact, and therefore state is more interested in providing a remedy
Specific jurisdiction – does not touch the x-axis because if you did you would have zero contacts, and that cannot create jurisdiction
# of contacts
                                                            Relationship of contacts to claim
*domicile : choice of law questions :: continuous and systematic activity : general jurisdiction – if P domiciled in forum, more likely state will want to apply its laws to the case
*govt interest (state’s interest in applying its laws) : choice of law questions :: ‘arose out of’ : specific jurisdiction
-Asahi Metal Industry v. Superior Ct of CA: (USSC 1987; one of most recent USSC cases on general jurisdiction)
California                                Taiwan                                    Japan
accident                                   Transaction b/w           Asahi makes tire valves
Zurcher and wife                    Asahi and Cheng
Reside; forum                                     Shin; Cheng Shin
                                                Puts in motorcycle
*Zurcher sues Cheng Shin and others in CA; Cheng Shin seek indemnification from Asahi; the claims against Cheng Shin and others are settled, and the only remaining aspect of the case is the indemnification suit b/w the two foreign companies
-Section IIA: (Rehnquist, O’Connor, Powell, Scalia) insufficient minimum contacts with CA to justify jurisdiction; reject assertion that simply placing an item in the stream of commerce and knowing that it will go to the forum state through that stream is sufficient – need purposeful actions directed towards the forum state, awareness item will go to a state alone is insufficient -Section IIB: (all but Scalia) DPC, ‘traditional notions of fair play and substantial justice,’ prevents CA from exercising jurisdiction; factors:
-burden on D,
-interests of forum state,
-plaintiff’s interest in obtaining relief,
-the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and
-the shared interests of the several states in furthering fundamental substantive social polices (look at the substantive law, whether its purpose will be served by allowing or disallowing jurisdiction – if P cannot afford to bring suit anywhere else, and it is important to give effect to a safety law, that will weigh heavily in favor of jurisdiction);
*here, burden on D is high, CA d/n have much interest in the case b/c P has been made ‘whole;’ CA’s argument that exercising jurisdiction here will serve the purpose of the legislation to act as a deterrent to dangerous products is too broad, the dispute is really about indemnification rather than safety standards; pressures created by the risk of law suit will still be placed on Asahi by the purchasers of its components so long as those who use the components sell the products in CA and are subject to CA tort law
à personal jurisdiction is really about power and states getting what they want – too inconvenient to Asahi here, but CA will still get effect of its laws thru other purchasers and through the choice of law in this case in its appropriate forum
-concurrence (Brennan, White, Marshall, Blackmun): rejects IIA’s stream of commerce rule; a D who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum state, and indirectly benefits from the state’s laws, and so basing jurisdiction on this contact is w/in DPC
à ultimate rule:
-purposeful availment is enough to create minimum contacts (includes advertising, designing the product for marketing in the state, etc)
-regular and anticipated flow of products in a course of dealing (over a period of time) is sufficient
-even if minimum contacts can be established, still need to look at the fairness factors – DPC analysis can override minimum contacts (Asahi expands personal juris concerns)
à ultimate, ulimate rule: need to analyze both minimum contacts and the fairness factors.
*liberal justices here argued broad jurisdiction, so read DPC narrowly, conservatives argued narrow jurisdiction, so read broadly – why…
            -liberals protecting P rts, ability of little guy to sue? But d/n explain all cases
-state sovereignty v. federalism – conservatives want to emphasize importance of state boundaries, sovereignty of each state w/in territory, independence of units; liberals not as concerned, d/n think as important, state boundaries less meaningful than fed power, unification of units, strong fed govt
*service w/process in state satisfy DPC?
            -Pennoyer b

negligent harm, and whether a person is responsible for harm regardless of his intention or care (strict liability)
-§382: Duty or Privilege to Act: a person who is required by law to act/not act in one state in a certain manner will not be held liable for results of such act/omission which occur in another state; a person who acts pursuant to a privilege conferred by the law of the place of acting will not be held liable for results of act in another state
-§384: Recognition of Foreign Causes of Action: if a cause of action is created at the place of wrong, it will be recognized in other states; if no cause of action is created at place of wrong, no recovery in other states
-§385: Contributory Negligence: whether contributory negligence precludes recovery is determined by law of place of wrong
-§386: Liability to Servant for Tort of Fellow Servant: liability for master determined by law of place of wrong
-§387: Vicarious liability: determined by law of place of wrong
-§390: survival of actions: whether claim survives death of tortfeasor/injured person determined by law of place of wrong
-§391: Right of Action for Death: governed by law of place of wrong
-§398: Compensation under Act of State of Employment: workman who enters ER/EE k in a state in which a workman’s compensation act is in force can recover compensation under the act in that state for bodily harm arising out of and in the course of the employment, although harm suffered in other state, unless act provides specifically otherwise
-§399: Compensation under Act of State of Harm: except as stated in §401, workman may recover in state in which harmed under workman’s compensation act of that state although K for employment made in other state, unless act specifically provides otherwise
-§412: Measure of Damages for Tort: determined by law of place of wrong
-§421: Exemplary Damages: determined by law of place of wrong
à law of state where injury occurs is law that applies to tort – parties rts must vest before can determine what law applies, rt d/n vest til injury occurs
-coa for death governed by law of place of wrong; place of wrong is state where last event necessary to make an actor liable for alleged tort took place, and when person sustains bodily harm, place of wrong is place where harmful force takes effect on body
*party expectations – ppl d/n expect to be sued unless and until last incident of coa, the injury, occurs
-lex fori: apply law of forum;
*pro: cts know own law best, will apply most efficiently;
*con: encourages forum shopping (which discourages consistency and fairness, creates system where Ps w/more resources can go to juris w/more favorable lawsà favorable outcomes based on wealth; efficiency concerns, as could create case overload in certain systems); raises state sovereignty issues (infringes on sovereignty of states w/greater claim to apply of their law) which causes a break down in comity and national unity
-§311. Place of Contracting: law of forum decides as a preliminary question by the law of which state questions arising re: formation of a k are to be determined, and this state is, in the RST, called the place of contracting
à under its conflicts of law rules, forum decides the place in which, under the general law of contracts, the principal event necessary to make a K occurs – do not ask whether there is a K, only where, under general law of Ks, the principal event occurred
-then apply the law of the place of contracting to determine if there is a contract
-§312. Formal Contract: when a formal K becomes effective on delivery, the place of contracting is where the delivery is made
-§314. Formal Contract Completed by Mail or Carriage: when K is to be delivered by mail or common carrier, place of contracting is where the document is posted or is received by the carrier