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


Week 1

(a) Can you open the courthouse door (jurisdiction)

a. If you can, you get that state’s choice of law scheme

(b) Which state law will be used? What are the dominant schemes?

(c) What happens at the end of the litigation

a. Never have to worry where the money is, can take the judgement anywhere & “cash the check”

b. Full Faith & credit clause of US Constitution means that every state must enforce judgements of other states

Personal Jurisdiction

v State exercising power over the individual litigants – guaranteed by Due Process Clause of Fourteenth Amend (state). Fifth Amend. in federal court

o As a function of Constitution, federal courts exercise national contacts power

§ Congress then limited federal court in legislation (FRCP Rule 4)

§ Courts disagree on whether contacts must be with the “sovereign” (US) or particular state

o Fed can only exercise personal jurisdiction if state court can, except under Rule 4(k)(1)(A) where they are allowed to “take it national”:

§ (1) defendant had sufficient contacts but state long-arm statute does not extend to the full extent allowed by constitution

§ (2) defendant lacks sufficient contacts but has sufficient contacts w/US – targeted US market but insufficient contacts with individual states (Bankruptcy court, Al Quida)

v Huge driver in forum shopping “because it matters”

v Must have PJ over each defendant (plaintiff consents, don’t waste time)

Personal Jurisdiction Analysis

v (1) Acknowledge Pennoyer’s territorial ways to get PJ

o (1) Attachment (in rem over property) in state,

§ Died in 1977

§ Oregon didn’t grab his property before they litigated

§ Originally could only get up to the value of property in damages

o (2) Service in state

o (3) Consent (shows up to court)

§ Always free to create that relationship

o (4) Domicile (if someone is a citizen)

§ Alligator with very short arms—physically in state

o (5) Status (don’t worry about. Family law—divorce, child)

o Pennoyer v. Neff-Oregon tried to take Neff’s land

§ Due process requires:

· (1) letting people know the state wants to exercise power (notice), and

· (2) actually having a basis to act—jurisdiction

§ States are no longer limited to exercising PJ on territorial basis but can still use one of the methods above (Keith Richards of PJ)

o States reacted to this territorial restriction in creative and complicated ways

§ Hess v. Peloski (hit & run)—fictionalized form of consent by writing a statute that makes drivers in state “name” that state’s secretary of state as server of process

§ Harris v. Bach (died in 1977)—anyone who owes you money is considered your “asset” and therefore can be served on your behalf

o Int’l Shoe was SCOTUS’s reaction to modern times—states can now reach outside their borders sometimes

v (2) Contacts

o Contacts analysis was established in Int’l Shoe v. Washington (1945)

§ Facts: Company based in St. Louis, had people who would walk around selling shoes. Didn’t pay payroll taxes in Washington’s unemployment scheme

§ States can now exercise power (personal jurisdiction) outside of their borders as long as a defendant has

· (i) “minimum contacts” (systematic & continuous if general jurisdiction); and

· (ii) does not interfere with traditional notions of fair play

§ Long-arm statutes went from being very detailed to saying “we authorize everything up to the limits of the constitution”

o (a) did they reach out?

§ Communications matter (Burger King)

§ Hanson—Reaching out means that there is some act by which defendant purposely avails itself to forum state. “Not about lines, about vectors.” The old woman reached out but the bank never did. Sending a check is a unilateral activity not purposeful

§ Doesn’t mean physically reaching out but that can help

§ 80% of what SCOTUS has been do

lled, mailed the King in Florida & initiated the conversations), because they purposefully created those contacts it will be sufficient as reaching out

§ FP/SJ in a modern world, traveling domestically is not undue burden but absence of burden does not grant power.

§ This case lost the FP/SJ battle for defendants, essentially the death of FP/SJ

o (b) Don’t fixate on the byproduct—a contract is evidence of an agreement, but does not prove existence of purposeful availment/reaching out.

§ Choice of law clause is not the same as “choosing a state” or reaching out

§ Use forum selection clauses to avoid jurisdiction in another state

v Asahi Metal Industry Co. v. Superior Court (1987) – foreign manufacturer, motorcycle accident from blown tire (CA state court)

o (a) mere awareness that a product will end up in the forum state is not sufficient to purposely avail a company to the jurisdiction. Stream of commerce/foreseeability alone isn’t enough. No sales or marketing targeted to CA (O’Connor)

§ Did not settle the issue of reaching out. Most state courts sided with Brennan’s broad interpretation that they had jurisdiction on stream of commerce

o (b) the court focused on the severe burden for the international manufacturer (Asahi), found that there was no jurisdiction

§ FP/SJ do matter in international suits

§ Not just a travel burden, burden of parties having to subject themselves to a different legal system

§ California has no interest anymore in which Asian company bears the burden, because the safety & compensation part of the suit was already settled