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Conflicts of Law
University of Oklahoma College of Law
Gensler, Steven S.

FALL 2012
General Information
PJ is court’s power over individual litigants; 100 litigants = 100 analyses.
A person consents to PJ in a state by filing his claim in that state’s courts.
Differences between state and federal courts
                                                              i.      Before Rule 4(k)(1)(a)
1.      A state had to show, consistent with the 14th amendment, that it had power over you
2.      The federal government just had to show you had a connection with the federal government (5th amendment) – guaranteed to find this.
3.      That opened up PJ in federal courts nationwide.  Oklahomans who couldn’t be sued in state court in Illinois could be sued in federal court in Illinois.
                                                            ii.      After Rule 4(k)(1)(a)
1.      PJ in federal court is the same as state court sitting next to it.
2.      If the state court of Idaho wouldn’t have jurisdiction over you, the federal court in Idaho certainly wouldn’t have jurisdiction over you.
3.      For forum shopping, under the Fifth Amendment, you have range to sue a greater number of people if you choose the federal courts to hear your case.
4.      Some exceptions – Other parts of 4(k) left open room for federal judges to have a little more power than state judges.
Pennoyer v. Neff
                                                              i.      Seminal case that ruled that PJ extends to the borders of a state and no further.
                                                            ii.      You find your target within a border (service in state portion of menu), you grab it, and that’s your hook.
                                                          iii.      This philosophy tricky with corporations – states started saying a corporation has physical grounds in a state if they systematically and continuously do business there.  You find an agent of the corporation in the state and serve the summons on that agent.
                                                          iv.      Service in state later downplayed w/ addition of “contacts” to menu.
Consent Jurisdiction
You agree that you will be able to be sued in a particular state if you don’t assert an affirmative defense of lack of personal jurisdiction in your first response, according to rule 12(h)(1).  Failure to assert in first response causes you to lose the defense and consent to jurisdiction in that state.
You also consent by filing a claim/complaint in a particular state.  You consent to any claims you raise and claims that are raised against you, whether or not those claims are related to the original incident. 
Your use of something with a forum consent clause binds you to the jurisdiction listed in that clause (Carnival Cruise Lines).
Most states have statutes that say you consent to their jurisdiction and laws for accidents you have in their state if you drive on their roads, even if you’re a nonresident of that state.
                                                              i.      In Pawloski, the Massachusetts statute said you appoint the Secretary of State as your agent to receive in-state service of process (this was before long arm statutes).
Domicile Jurisdiction
Domicile is the place you set yourself up to remain indefinitely and to which you plan to return after an absence.
You are always able to be sued in your place of domicile, even if you are not there at the time of the lawsuit.
You only have one domicile.
Contacts Based Jurisdiction
First added to PJ menu with International Shoe – When a defendant’s contact with a state is continuous and systematic, such that the state can act against the defendant.
Lawsuits brought under contacts jurisdiction do not have to directly arise out of or relate to the contact – if you can show your defendant has systematic and continuous contact with your state, you can sue them for absolutely anything.
It has to be the party reaching out to the forum, not the forum reaching out to the party.
                                                              i.      If Gensler went to Texas, got into a fight with a guy, came back to Oklahoma, and then the Texas guy sued him in Texas, the contact would count for personal jurisdiction because Gensler reached out to the forum (Texas).  However, if a guy came up to Oklahoma, beat up Gensler, went back to Texas, and sued Gensler in Texas, the contact wouldn’t count for personal jurisdiction because the forum (Texas guy) reached out to the contact (Gensler in Oklahoma).
International Shoe
                                                              i.      You must make sure the contracts with the forum state are sufficient, so that they do not offend “traditional notions of fair play and substantial justice”
                                                            ii.      The privilege of conducting activities in a state also gives rise to obligations with that state.  A corporation conducting business in a state must respond to suits brought against them in that state.
Long Arm Statutes
                                                              i.      Authorizes the “long arm of the law” to reach into another state so that the court can exercise jurisdiction over a non-resident.
                                                            ii.      Every state has a long arm statute.  Some long arm statutes allow service to extent to the farthest reaches of the U.S. – Oklahoma’s does.
                                                          iii.      TEST – Acknowledge a state has a long arm statute and leave it at that.
Specific Contacts-Based Jurisdiction – TWO PART TEST
                                                              i.      Minimum Contacts
1.      Standards are very low – one contact can count if the lawsuit directly arises out of or relates to the contact.  A “but-for” relationship can sometimes determine what “arises out of or relates to” a contact.
                                                            ii.      Fair Play/Substantial Justice
General Contact Based Jurisdiction – “systematic and continuous”
                                                              i.      If you reach out to a state systematically & continuously, it’s fair to treat you local.  If you’re local, you’re open to suit for anything.  Helicopteros.
                                                            ii.      We treat property in state as a contact, and not as a stand-alone basis for jurisdiction (Shaffer v. Heitner).
1.      The domicile of a corporation is where it’s INCORPORATED, not where its headquarters are.
2.      This is the end of attachment jurisdiction.
                                                          iii.      Signing a contract in a state and then abiding by that contract can be a minimum contact (Burger King).
1.      How many contacts equal “minimum” – factors to look at:
a.       Burde

                                                              i.      Characterize the suit as a contract suit
                                                            ii.      Determine where the contract was made
1.      Where it was drafted, where “the words were spoken”, etc.
                                                          iii.      Under 1st Restatement, the place where the contract was made determines whose law applies.
Family Stuff
Looks to the place of domicile of parties in dispute.  Haumschild v. Continental.
This standard may not apply when other parties besides family are involved.
You must determine whether an issue is substantive or procedural.  If it’s procedural, which it most always will be, the law of the forum applies.
Specific issues deemed “procedural” in case law:
                                                              i.      Survival Actions – Grant v. McAuliffe
                                                            ii.      Damages Caps – Kilberg v. Northeast Airlines
                                                          iii.      Med Mal Claims – Vest v. St. Albans
Escape Devices
                                                              i.      Deciding you don’t like the results of the original characterization, and recharacterizing the suit to get a result you like better.  Levy v. Daniels.
                                                            ii.      Substance/Procedure – If one court determines something is substantive, another court can recharacterize it as “procedural”, so as to alter the available recovery.
                                                              i.      A court invokes renvoi when it says the reference to the other state’ law includes the other state’s choice of law principles.
1.      If I’m in Oklahoma and I believe Texas law applies but I look only to Texas internal law, this is not renvoi.  If I believe Texas internal law AND Texas choice of law principles apply, renvoi is enacted.
                                                            ii.      This is an escape device, because courts only use it when they need and want to.
                                                          iii.      Look to the “whole law” of a state – both internal and conflicts law:
1.      Internal – all state law except “choice of law” law
2.      Conflicts Law – “choice of law” law
                                                          iv.      Renvoi requires a second choice of law analysis on the exam.
                                                            v.      Renvoi will only be invoked to get a favorable result that a judge can’t get through its own choice of law principles.