Select Page

Conflicts of Law
University of Iowa School of Law
Carlson, Jonathan C.

Conflict of Laws
Summer 2018
There is a fragmented political system (in the US and globally). It is composed of separate political entities. Each of these distinct “sovereignties” has its own courts and its own laws. Private activities often cross these jurisdictional lines. When a dispute arises out of private activities that touch more than one jurisdiction, there are three key “conflicts” issues.
Three Key Conflicts Issues:
Judicial Jurisdiction
Which jurisdiction is entitled to resolve that dispute? Whose courts can hear the matter?
Choice of Law / Prescriptive Jurisdiction / Legislative Jurisdiction
What laws determine the parties’ rights and obligations? What laws provide the rules of decision for the case?
Recognition & Enforcement of Judgments
Will one state or nation enforce a judicial decision (a judgment) that was made by a court in a different state or nation?
Conflict of Laws is:
The body of law (i.e., a set of legal rules and principles)
that seeks to determine
which jurisdiction’s courts can be used to resolve a private dispute;
which jurisdiction’s laws will provide the legal rules for deciding the dispute; and
whether one jurisdiction’s resolution of the dispute will e respected by other jurisdictions.
***A/k/a “Private international law”
Deciding where a suite can be filed and where the suit should be filed
Determining the likelihood of success
Determining the prospects of securing an enforceable judgment
Transactional Lawyers:
Can transactions or operations be structured to:
Limit jurisdictions in which clients can be sued?
Ensure applicability of favorable law?
Otherwise limit litigation risk?
Review of PJ:
Plaintiffs generally pick the forum for litigation because they initiate the suit
Some factors that might influence a plaintiff’s choice of forum:
Expectations about jury/judge behavior
Convenience for plaintiff and her lawyers
Availability of witnesses and other evidence
Beneficial / familiar procedures
Belief that court will apply favorable substantive law
Forum Shopping = good litigation planning
Factors restricting plaintiff’s choice of forum
Court must have personal jurisdiction over defendant
Court must have subject matter jurisdiction
Federal courts: diversity; federal question
State Courts: general jurisdiction courts v. specialized courts (e.g., small claims; family law)
Case must be brought in a proper venue
Defendant may seek and receive removal, transfer, or dismissal of an action on grounds that another location is a more appropriate location for the action
Parties may agree in advance on a particular forum through a forum selection clause
Evolution of PJ in US:
19th Century Tradition:
Power over the defendant’s person or property
Based on physical presence within the territory of the forum state
3 types of jurisdiction to adjudicate a person’s rights
in personam: power over the defendant’s person = power to adjudicate all his or her rights and obligations
in rem: power over property = power to adjudicate any person’s rights and obligations pertaining to that property
quasi-in-rem: power over property = power to adjudicate claims against a person that are unrelated to the property, but only to extent of value of that property
Pennoyer v. Neff:
Constitutionalized the traditional rule of jurisdiction based on presence of person or property
Due Process: State court judgments are valid ONLY if court had a basis for jurisdiction that was consistent with traditional concepts (e.g., power over person or property)
Two additional traditions that grew in importance:
Jurisdiction based on consent
Jurisdiction based on domicile
Evading the presence rules:
The problem:
Traditional jurisdictional ideas were inadequate to deliver justice in modern, mobile, industrial economy
Persons could be immune from suit in locations where they caused serious tortious or contractional harm
The solution:
Fiction of implied consent
Expansion of concept of jurisdiction based on domicile
Implied Consent:
Driving in a state deemed to be consent to be sued
Transacting business in a state deemed to be consent to appoint a state official as “agent” to receive service of process
Domicile: a person’s permanent home
Even when absent, a person can be sued at his or her domicile
Once a domicile is established, it is retained until a new domicile is established
Corporations: where are they domiciled? What is their home?
State of incorporation
But also?
Courts began to view corporations as equally “present” in any state where they were “doing business” in a regular and continuous way
International Shoe Standard:
“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 maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.”
Shaffer v. Heitner: minimum contacts standard applies to quasi-in-rem (and in rem) proceedings
Burnham v. California: “tag” or “transient” jurisdiction remains valid
Service of process upon a physically present defendant confers jurisdiction, even in the absence of other contacts
Evaluating a defendant’s contacts:
Contacts must be such that it is reasonable to require defendant to defend an action in the forum
Not a “mechanical or quantitative” counting of contacts; but focus must be on “the quality and nature of the activity in relation to the fair and orderly administration of the laws.”
The “purposeful availment” test – a touchstone
“As a general rule, the exercise of judicial power is not lawful unless the defendant ‘purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the bene

versity actions may “be brought ONLY in:
A judicial district where any defendant resides, if all defendants reside in the same state;
A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated;
 A judicial district in which any defendant is subject to personal jurisdiction {“may be found”} . . . , if there is no district in which the action may otherwise be brought.”
Erie Doctrine
In diversity actions, federal district courts must apply state substantive law.
Substantive v. Procedural
Federal courts apply their own procedural rules (e.g., Federal Rules of Civil Procedure).
Some state “procedural” rules are “substantive” for Erie purposes:
The rule is:
Bound up with substantive rights,
clearly affects the outcome, and
reflects state policy in an area where the state clearly has authority to legislate.
E.g. statutes of limitation are ‘substantive’ for Erie purposes, though states may consider them procedural.
Which State’s law?
The law, including the choice-of-law rules, of the state in which the district court sits.
The federal district court decides the case as though she is a state court judge
Example: Suit in IA state court concerning an automobile accident in IL.
Assume IA would apply its own statute of limitations (because procedural).
but would apply IL negligence principles because the accident happened there
Same suit as a diversity action in Federal court in IA
IL negligence principles, because that is what IA would do!
Importance of venue choice:
Because of the operation of Erie doctrine, venue choice can determine whether a plaintiff’s lawsuit fails or succeeds
Example: accident in state X. Truck driver from state Y. Plaintiff from state Z.
State X: 1 year tort S/L
State Y: 2 year tort S/L
State Z: 3 year tort S/L
18 months after accident, plaintiff decides to sue truck driver.
Each state treats S/L as procedural and applies its own statute to actions brought in its courts.
Venue Transfer:
28 USC § 1404(a) – transfer of venue for convenience
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”