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

– Introduction
3 Questions of Conflicts of Law
– 1) Where can or should litigation take place? (Jurisdiction)
– 2) Which law will the court apply? (Choice of Law)
– 3) Where can one enforce the resulting judgment (Recognition and Enforcement of Judgments)
Issues
– If I sue in OK, will an OK court hear the case?
– If I sue in OK, will I get OK law?
Horizontal v. Vertical Conflicts
Art VI – Supremacy clause & FFCC
Keeton v. Hustler
– The state where the suit is filed will apply their own COL rule to see what states law they will use
o Bedrock principle of forum shopping
Personal Jurisdiction
Issue #1 Analysis
Start with the Menu – SSDCC – **NOTE: You get points for checking the irrelevant/obviously inapplicable off the list***
1) Status
– Family (did not cover)
2) SIS
– Served there, get there – unless there via fraud –Burnham v. Superior Court of California
3) Domicile
– Business
o Principle Place of Business
o Place of Incorporation
– Individual = residence
4) Consent
– a) Open Consent (i.e. filing a claim in the jurisdiction (∏)
– b) (D) showing up to defend – not timely objecting – in answer or pre-answer (FRCP 12(h)(1))
– c) Failing to raise lack of PJ properly
– d) COL Clause
– e) Forum Selection Clause
5) Contacts
– DPC gives a degree of predictability to the legal system that allows potential (D)s to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit (control) (“. ..if he be not present within the forum, he must have minimum contacts. . .”—International Shoe)
– Property in the forum qualifies as one contact—Shaffer v. Heitner
– a) List the contacts (through discovery)
– b) Count the important contacts (which ones count)
o (i) (D) Purposefully availed himself
§ Purposeful availment of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws
§ Marketing – mere fact that a product is manufactured or sold outside of the forum state and finds its way into the forum state and causes injury there is not enough – must make some purposeful effort to market in the forum state
o (ii) Foreseeabiltiy
§ Minimum contacts must be such that one can “reasonably anticipate being hailed into court there”—World Wide Volkswagen
o (iii) K – on contact may be enough if it is important – McGee
o (iv) Substantial Effects – Calder v. Jones
§ 1) Intent (intentional conduct)
§ 2) Focal Point (focal point of conduct is another state)
§ 3) Knew Injury would be sustained there
§ 4) Harmful effect is the contact
o (v) Stream of Commerce
§ Retailers/Dealers = stream of commerce not enough
§ Component/Product Manufacturers = 2 views within Circuits
· 1) Brennan – stream of commerce is enough
· 2) O’Connor – stream of commerce + something else (direct marketing, designed specifically for the market, etc)
§ Do not count when forum reaches out or acts of 3rd party cause the contact – Helicopteros
o (ii) Property
§ Presence of property alone is insufficient – Shaffer v. Heitner
– c) Add contacts to see if enough for General or Specific Contacts-Based Jurisdiction
o i) General Contacts-Based Jurisdiction
§ 1) Suit need not relate to contacts
§ 2) Is this enough to reach systematic and continuous?
· Purchasing services does not count for very much – Helicopteros
§ 3) If no, then no General Jurisdiction – go to Specific
o ii) Specific Contacts-Based Jurisdiction
§ 1) Minimum Contacts (∏ has burden of proof—BK)
· The minimum degree of contact necessary in order to sustain a cause of action within a particular forum, consistent with the requirements of DP
0 Contacts Min Contacts Helicopteros Systematic & Continuous Perkins All Contacts
I—-I———-I——————–I——————————–I———————————————I————————-I
BK
§ 2) Must Arise out of OR Relate to
· a) Does the claim arise out of or relate to the contact?
o i) Arises out of?
o ii) Relates to?
· b) Minority view = arise/relate = “but for” test
§ 3) Fair Play & Substantial Justice (assuming contacts based jurisdiction)
· Don’t forget to discuss this, but don’t dwell on it – get most points for going through the menu
· 1 or more of the following must be compelling – BK
o 1) Burden on (D) *matters to Gensler*
o 2) Forum’s interest *matters to Gensler*
o 3) (P) interest
o 4) Shared interest of the several states (little significance in domestic cases)
o 5) Sovereignty (little significance in domestic cases)
· Even if minimum contact, may violate FP/SJ – Asahi
– Federal Courts
o 5th Amendment (DP) merely requires minimum contacts with US as a whole
o FRCP 4(k)(1)(A) – national PJ power of federal district court
o PJ in Dist Ct is same as PJ power in the state in which that ct sits
o 100 mile bulge rule
o Interpleader
o Statute
– Internet –Cybersell, Inc. v. Cybersell, Inc.
o If (D) enters into contacts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the internet, PJ is proper
o A passive web site that does little more than make information available to those who are interested in it is not grounds for PJ
o Anywhere in between, exercise of PJ is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the site
o Analyze under Consent-based jurisdiction (i.e., K) or Contacts-based jurisdiction (most others)
Choice of Law Regimes
First Restatement
Tortsà lex loci delicti à place of wrong à injury à blood spilled
– “Vested Rights” – rights vest at point injury received – law where things happen
o No recovery in one state for injuries to the person sustained in another state, unless the infliction of the injuries is actionable under the law of the state in which they were received – Alabama Great Southern
o State where the last event necessary to make an actor liable for an alleged tort takes place – where harm is done to the reputation of the person, the wrong is where the defamatory statement is communicated
– Reasons
o 1) Ease of application
o 2) Common ground
o 3) Neutral rule – does not favor (P)s or (D)s as a class
o 4) Party expectations
o 5) Locus state’s “interests”
§ State where tort occurs has greatest interest in striking a reasonable balance among safety, cost, and other factors pertinent to the design and administration of a system of tort law
§ Most people affected are residents of the jurisdiction in which the event took place
o 6) Uniformity of result & avoidance of forum shopping
– **When you are forum shopping, don’t go to the state whose law you want, go to the state whose COL rules you want

Contractsà place of making (form/capacity)
– Place of performance when issue is performance of the K
– Millike

committed in one state creates a right of action that may be sued upon in another state unless public policy forbids
o Kilberg v. NE Airlines
§ Damage cap violated NY PP – gambling does not
§ In a case involving conflict of laws, the law of the forum is controlling as to procedures including remedies
o Owen v. Owen
§ When applying lex loci delicti, if the law of the place of the wrong runs contrary to a strong public policy of the forum state, then the law of the forum state controls
§ You can make a public policy argument about anything. It is up to the ct whether they agree.
Issue #2 Analysis
1) Characterize the claim
– Tort
o Don’t worry if you were going to characterize it as a contract claim because you will discuss the tort claim when you talk about the escape devices and re-characterization possibilities
o Tort à place of injury = Utah
o Kà place of K; Family à Domicile; Land à Situs; Procedure à Forum
§ Not good for Laura, but the she has not lost all hope.
2) Escape devices (even if you feel that you win initially, do not forget to go through the re-characterization analysis because it works for both sides)
– If you feel like you win one of the escape devices, do not think that your analysis is done
– 1) Re-characterization
o You do not necessarily have to list all the possible re-characterizations unless the question is of the type that would allow it to be three or four of the possible characterizations (i.e. contract, procedure, land, family)
o Contract (whether the K is bilateral or unilateral is beside the point; the point is whether you can get a judge to re-characterize it as a contract)
§ If formation issue à place of making
§ If performance issueà place of performance (contract validity)
– 2) Substance / Procedure
o Procedure = law of forum
o Substance = other law
– 3) Renvoi
o The whole idea is that you are asking the judge to apply the whole law of the foreign state
§ Exp. UT would apply OK law
· Typically, for Renvoi question, he would NOT tell you that the foreign state applies OK law
o Merely establish that it might work
– 4) Public Policy
o You are trying to get the judge to say that it is a violation of OK public policy to apply UT law
3) What do you tell Laura?
– There is a really good shot that OK would say that it has jurisdiction – and a pretty good shot for getting judge to use one of the escape devices and apply OK law – BUT we would perhaps have to handicap on escape devices
4) Follow Up Question
– Exp. Would it have been better to sue in UT?
o Just looking to see if you could articulate a reason why it would or would not be a better choice
§ Maybe it would be counterintuitive to sue in UT because there is PJ and COL, and their COL gets OK
Interest Analysis