Sachs - Conflict of Laws Outline

Conflict of Laws 220.
01 Course Outline
Professor Stephen Sachs Spring 2017
Table of Contents
_Toc480971549First Restatement............................................................................................................ 2
I. General principles .......................................................................................................................... 2
II. Torts ................................................................................................................................................ 2
III. Contracts......................................................................................................................................... 2
IV. Domicile ...................................................................................................................................... 2
V. Real Property ................................................................................................................................. 3
VI. Personal Property ...................................................................................................................... 3
VII. Corporations .............................................................................................................................. 3
VIII. Marriage and family matters.................................................................................................... 4
IX. Exceptions ....................................................................................................................................... 4
X. Characterization Challenges ......................................................................................................... 4
Interest Analysis .......................................................................................................................................... 5
II. Determining Interests .................................................................................................................... 5
III. True conflicts, false conflicts, and unprovided-for cases ............................................................ 6
IV. Criticisms of interest analysis ................................................................................................... 6
Comparative Impairment .......................................................................................................................... 7
II. Examples ......................................................................................................................................... 7
Leflar’s Better Law ..................................................................................................................................... 7
II. Choice of law factors ...................................................................................................................... 7
Second Restatement .................................................................................................................................... 8
II. Torts ................................................................................................................................................ 8
III. Contracts......................................................................................................................................... 8
IV. Statute of Limitations ................................................................................................................ 9
V. “Goals” of Choice of Law (§ 6) ..................................................................................................... 9
VI. Challenges .................................................................................................................................. 9
Judgments .................................................................................................................................................... 9
I. Proof of Law/Authentication ...................................................................................................... 10
II. Recognition ................................................................................................................................... 10
III. Enforcement ................................................................................................................................. 11
IV. Attacks on Judgements ........................................................................................................... 11
Jurisdiction ................................................................................................................................................ 12
I. General Principles........................................................................................................................ 12
II. Personal jurisdiction .................................................................................................................... 12
III. In rem jurisdiction ....................................................................................................................... 13
IV. Jurisdiction to tax and escheat ............................................................................................... 13
Class Actions.............................................................................................................................................. 14
I. Characteristics of a class action .................................................................................................. 14
II. Choice of law in class actions ...................................................................................................... 14
Constitutional Constraints on Choice of Law ........................................................................................ 15
I. Full Faith and Credit ................................................................................................................... 15
II. Due Process ................................................................................................................................... 15
III. Sovereign immunity ..................................................................................................................... 15
IV. Commerce Clause .................................................................................................................... 15
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Conflict of Laws 220.01 Course Outline
First Restatement
I. General principles
Vested rights
1. Right = to a cause of action
2. Where does the cause of action vest?
Territory
Monist: Different courts will all come to the same conclusion
II. Torts
A. Law of place of injury/last act
1. § 377 Place of Wrong
a. “The place of wrong is in the state where the last event necessary to make an actor
liable for an alleged tort takes place”
2. § 378 Law Governing Plaintiff’
3. Elements of the tort will matter in determining the last act
a. Fraud: Where the loss occurs
b. Poison: Where the poison takes effect
4. Vested rights
a. Cause of action vests with injury
b. Challenge with multiple vesting (poison example)
Exception
1. §382 Duty or Privilege to Act
a. A person required by law to act (not to act) in one state is not liable for the results
of suction action (failure to act) in another state
b. A person who acts pursuant to a privilege conferred by the law of the state will
not be liable for the results of the privileged action in another state. Note:
Privilege is determined by the state of the “act,” not the state of the “injury”
i. Stand your ground laws
c. Rationale: In some cases, states need to control acts in their territory despite the
last act rule
III. Contracts
A. Law of place of formation governs validity of contract
1. E.g., Capacity to contract, required consideration, fraud which would void a contract
2. Challenge: What is “formation” of the contract? How do you deal with states that
define the formation of the contract differently (e.g. mailbox rule v. no mailbox rule,
unilateral contracts v. no unilateral contracts)?
a. Solution: Use “general rule” – the mailbox rule – to determine where formation
has occurred
Law of place of performance governs breach of contract
3. Breach of contract
a. Breach of contract is when the cause of action vests
IV. Domicile
A. Law of forum
1. Domicile requires: (1) presence and (2) intent
a. To change domicile requires capacity
b. Every person has only one domicile at a time
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2. Domicile matters for:

a. Status (e.g., marriage)
b. Personal jurisdiction
c. Taxation
d. Probate
V. Real Property
A. Law of place where property is located
1. Governs capacity to convey land
2. Governs effect of marriage on ownership
3. Governs intestacy (inheritance without a will)
4. Governs “magic words” in an instrument for conveyance
a. Presumptive in other places, though a contrary intent of the parties can rebut the
presumption
b. Domicile of conveyor is a back-up
VI. Personal Property
A. Law of place where chattel is located
1. Note: Intangible property requires us to pick a physical place where the property is
situated
Exceptions
1. Chattels and marriage
a. Law of domicile of the husband determines the effect of marriage on ownership
of each spouse’s existing chattels
b. Law of domicile of the couple determines the ownership of chattels acquired
during marriage
2. Probate
a. Law of state where chattels are habitually kept
3. Trusts
a. Law of state were chattel is located governs validity of trust created by inter vivos
transaction
b. Law of state where transaction occurs governs validity of a trust of choses in
action created by inter vivos transaction
c. Law of testator’s domicile at time of death governs validity of trust created by
will
d. Law of settlor’s domicile at time trust was created governs interpretation of the
trust instrument
e. Law of place that trust instrument identifies as administration of trust governs the
administration of the trust
VII. Corporations
A. Law of place of incorporation
1. Internal affairs doctrine
Exception
1. Direct liability of shareholders
a. State of incorporation can impose direct liability on a shareholder no matter what
b. State of conduct that results in liability can impose direct liability on a
shareholder only if the shareholder is domiciled in the state, has personally taken
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part in the action that resulted in liability, or has notice that the corporation was
formed to do business there
VIII. Marriage and family matters
A. Law of place of marriage governs validity of the marriage
1. Even if you go somewhere to evade your own domicile’s marriage laws
2. Note: Marriage ≠ judgment; Divorce = judgment (so Full Faith and Credit applies)
Exception
1. Public policy at the point of recognition
a. If the marriage is against the policy of another state, that state can refuse to
recognize the marriage (in that state only)
2. Domicile of either spouse controls everywhere in specific circumstances or if
domicile’s statute says so
a. Policy of domicile can void the entire marriage everywhere
b. Polygamous marriage, incestuous marriage, interracial marriage, marriage
prohibited by statute of domicile
Jurisdiction and family matters
1. To grant a divorce, forum just needs one spouse (marriage = res)
2. To grant/change custody, forum needs one resident/domiciliary but also personal
jurisdiction over the other spouse
IX. Exceptions
A. Penal law
1. States will not enforce another state’s penal law
2. Characterization: What is a “penal” law v. “civil” penalty
3. Challenge: What if state reduces the monetary penalty to a judgement? Does it have
to be enforced in another state?
B. Public policy
1. Forum does not entertain foreign cause of action because it is against “strong public
policy” of forum state
2. Allows courts to avoid being a party to injustice
X. Characterization Challenges
A. Substantive characterization/Dépecage
1. E.g., is inter-spousal immunity a tort law problem or a family law problem?
2. Dépecage: Dividing a case up into various issues governed by potentially different
laws
a. Problem: Different provision in a state’s law might not be independent from other
provisions (e.g., a damage cap might exist because of the way the cause of action
is defined)
b. Result: Hybrid law that does not actually exist in any jurisdiction (Allocamelus)
B. Whole Law v. Internal Law
1. Whole law: Conflicts rules and substantive law
2. Internal law: Substantive law
3. Renvoi
a. Forum state applies conflict of laws doctrine of a foreign state
b. Problem: How do you have a vested right somewhere when the whole law of that
place would not recognize that vested right?
c. First Restatement rejects renvoi except in cases involving
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i. Title of land
ii. Validity of divorce decrees
C. Substance v. Procedure
1. Conflicts substance v. procedure
a. Law of forum governs procedure
b. Law of forum determines threshold question of whether an issue is substantive of
procedural
i. If forum calls it procedure, use forum law
ii. If forum call it substance, use forum choice of law rules to determine which
law to apply
2. Erie substance v. procedure
a. Erie: Vertical choice of law
b. Erie procedure: Federal courts will apply federal procedure
c. Erie substantive: Federal courts will apply the whole law of the state
3. Erie/conflicts hybrids
a. What happens if something is Erie substantive but choice-of-law procedural?
i. E.g., statute of limitations and burdens of proof
ii. Erie substantive: Apply whole law of the state
iii. Choice of law procedural: Apply forum law
4. “Borrowing” statutes: Use shorter statute of limitations (either forum or where the
cause of action arises)
Interest Analysis
A. Issue-by-issue
Domicile
Statutory purpose
1. Look to purpose of statute to determine the reach/application of the statute
2. Focus is on the state interest (not private interest of the parties)
Pluralist
II. Determining Interests
A. Don’t weigh interests!
B. Most significant contacts test
C. Two big considerations:
1. Domicile of parties
a. States have an interest in protecting their domiciliaries
b. E.g., Babcock v. Jackson:  and ∆ are both from NY, so court reasons that
Ontario’s does not have an interest in applying its guest statute, which is meant to
protect Ontario insurers, and applies NY law
2. Conduct regulating v. loss allocating statutes
a. Conduct regulating statutes: States have an interest in regulating conduct with
their borders, so apply law of the place of the wrong
b. Loss allocating statutes: Place of parties’ domicile has an interest in protecting its
domiciliaries (either shielding them from liability or enabling them to recover), so
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apply the law of the parties’ domicile. If the parties are domiciled in different
places, look to the Neumeier rules (deal specifically with guest statutes):
i. When parties (host-driver and guest-passenger) are domiciled in the same
state, that state’s law applies
ii. When driver’s conduct occurred in state of his domicile and that state’s law
protects him from liability, law of driver’s domicile applies. When passenger
is injured in the state of his domicile and that state’s law permits recovery, law
of passenger’s domicile applies.
iii. When passenger and driver are domiciled in different states, law of state
where accident occurred applies unless “it can be shown that displacing that
normally applicable law will advance the relevant substantive law purposes
without impairing the smooth working of the multi-state system of producing
great uncertainty” (Read: Unless it causes problems).
III. True conflicts, false conflicts, and unprovided-for cases
A. True conflicts
1. Both forum and foreign state have an interest
2. E.g., Lilienthal v. Kaufman: OR has an interest in protecting creditors from spend-
thrifts and CA has an interest in making sure its creditors get paid. OR court applies
OR law to promote OR policy.
3. Solution: Forum should redo interest analysis with “restraint and enlightenment” with
respect to its interests to try to get into a false conflict scenario
False conflicts
1. Only one state has an interest
2. E.g., Babcock v. Jackson:  and ∆ are both from NY, so court reasons that Ontario’s
does not have an interest in applying its guest statute, which is meant to protect
Ontario insurers, and applies NY law
3. Solution: Apply the law of the state that has the interest
Unprovided-for cases
1. Neither forum nor foreign state have an interest
2. E.g., Hurtado v. Superior Court: s are all Mexican domiciliaries and ∆s are all CA
domiciliaries. Mexican law limiting recovery in wrongful death suits is meant to
protect Mexican ∆s, which doesn’t apply here
3. Default to forum law
Forum State Interest
Yes No
True Conflict False Conflict
Yes
Foreign State Apply forum law Apply foreign law
Interest False Conflict Unprovided For Case
No
Apply forum law Apply forum law
IV. Criticisms of interest analysis

A. No good resolution of true conflicts or unprovided for cases
1. With unprovided for cases, what happens if no statute applies? How do you find
choice of law?
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Defining interests in protecting plaintiffs/defendants based on domicile presents constitutional

problems (discrimination)
Leads to forum shopping
Unpredictable results
Should conflicts of law even have the goal of promoting interests/policy?
Comparative Impairment
A. Modification of interest analysis that applies the law of the state whose policies would be
most impaired by rejection of its rules
Allocation of state authority
1. 1st Restatement allocates authority a priori, usually based on territory
2. Comparative impairment allocates authority ex post, based on interests
II. Examples
A. Bernhard v. Harrah’s: NV does not impose liability to 3d party victims of their patrons,
but CA does. NV does impose criminal liability on taverns, so imposing civil liability on
this tavern does not result in a new duty for NV taverns and will not impair NV policy
not to impose civil liability.
Kearney v. Salomon Smith Barney, Inc.: CA has 2-party consent for recordings, but GA does not.
A company can comply with GA law while also complying with CA (but not the other way
around) so apply CA law.
1. Result: CA (stricter law) is exported.
Leflar’s Better Law

A. Functional approach
Legal realism
II. Choice of law factors
A. Predictability of results
1. Allows parties to plan conduct
2. Prevents forum shopping
Maintenance of interstate and international order
1. Comity
Simplification of judicial task
1. Choose a rule that is easy to apply
Advancement of forum’s government interest
1. Applies to “strongly felt” policy
2. Applies to “legitimate” interests (from a normative perspective – Sachs calls this “a
bit imperialist”)
Application of the better rule
1. This factor gets the most attention
2. Objective determination of what is the “better rule”
3. Leflar claims courts have always applied the better rule, but have used tools (like
characterization and renvoi) to obscure what they are actually doing. Aims to bring it
into the open.
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Second Restatement
A. Most significant relationship
1. 2d Restatement sets up presumptions that can always be overcome by the most
significant relationship test
Domicile (not just territory)
Pluralist: Different courts may come to different conclusions, but that is okay
II. Torts
A. § 145 The General Principle
1. Apply the law of the state that has the “most significant relationship” to the
occurrence and the parties (under the principles in § 6)
2. Consider these contacts:
a. Place where the injury occurred
b. Place where the conduct causing the injury occurred
c. Domicile, residence, nationality, place of incorporation and place of business of
the parties
d. Place where the relationship between the parties (if any) is centered
III. Contracts
A. Explicitly defers to contractual choice of law
1. If parties can resolve the issue explicitly in the contract, then they can choose the law
that will govern that issue. If the parties can’t resolve the issue explicitly, apply the
forum selection clause unless:
a. Chosen state has no substantial nexus/reasonable basis OR
b. Chosen state would be contrary to fundamental policy of the state whose law
would otherwise apply
2. Courts will broadly read what it means for a contract or claim to be “governed by” a
particular law, and will apply that law to surrounding claims (Nedlloyd Lines v. Sup.
Ct. of San Mateo Cty.)
3. Forum selection clauses should be upheld absent a showing that they are
unreasonable or unjust (The Bremen)
a. Same test applies for form contracts (Carnival Cruise Lines v. Shute)
B. § 188 Law Governing in Absence of Effective Choice by the Parties
1. Apply the law of the state with the most significant relationship to the transaction and
the parties (under the principles in § 6)
2. Consider these contacts:
a. Place of contracting
b. Place of negotiation of the contract
c. Place of performance
d. Location of the subject matter of the contract
e. Domicile, residence, nationality, place of incorporation, and place of business of
the parties
3. Presumption: Law of place of negotiating and performance if the same
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IV. Statute of Limitations

A. Default rule: Apply forum statute of limitations unless results would be unreasonable
1. Apply forum statute of limitations when it would bar claim
2. Apply forum statute of limitations if it allow claim, unless another state with a more
significant relationship would bar the claim and the claim serves no interest in the
forum
V. “Goals” of Choice of Law (§ 6)
A. Essentially gives “goals” for a coherent system of conflicts law, but without guidance
about how to accomplish these goals on a case-by-case level
B. § 6 Choice of Law Principles
1. Forum should follow statutory directives forum state on choice of law
2. If no statutory directive in the forum, consider
a. Needs of the interstate and international systems
b. Relevant policies of the forum
c. Relevant policies of other interested states and the relative interests of those states
d. Protection of justified expectations
e. Basic policies underlying the particular field of law
f. Certainty, predictability, and uniformity of result
g. Ease in determination and application of the law to be applied
VI. Challenges
A. Domicile
1. 1st Restatement is clear about what domicile is and when it matters, but for the 2d
Restatement, domicile is just a factor in interest analysis that underlies everything
2. Domicile shopping?
Renvoi
1. Does a state’s choice of law rule express the state’s interest in a case?
a. No (not unless choice of law rule explicitly says so!)
2. Circular to define a state’s interests this way
Substance v. Procedure
1. Forum always has an interest in applying its own procedure
2. Problem: What is substantive v. procedural? (same problem as under 1st Restatement)
3. Problem 2: What if procedural rules of the forum conflict with the substantive law of
the other interested state(s)?
a. E.g. Some rules of evidence serve procedural interests of forum court (relevance:
don’t waste the courts time), but others serve the interests of where the evidence
was created (privilege: where do these privileged conversations happen)
b. Statutes of limitations
i. Some courts use interest analysis to determine which statute of limitations to
apply (interest in not litigating stale claims v. interest in allowing recovery)
ii. Borrowing statutes: Often look to “accrual” of cause of action (is this like a
vested right?)
Judgments
Laws Judgments
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Evidence Proof of law Authentication

Effect Choice of law Recognition; Enforcement
I. Proof of Law/Authentication
A. Evidentiary issue
28 USC § 1741 Foreign Official Documents
1. Allows evidence of foreign official documents (subject to authentication)
FRCP 44 Proving an Official Record
1. Explains forms for proving official records (of states and of foreign countries)
FRCP 44.1 Determining Foreign Law
1. Party intending to raise issue about foreign country’s law must give notice
2. Court may consider all relevant material
a. E.g., treatises, translations, expert testimony, judicial notice
3. Question of foreign law are questions of law on appeal
II. Recognition
A. Recognize like an F1 judgment (but enforce like an F2 judgment)
1. Judgments from F1 have to become judgments in F2 before they can be enforced.
That is what recognition is about.
B. Comity
C. Uniform Foreign Money Judgments Recognition Act (1962) and Uniform Foreign
Country Money Judgments Recognition Act (2005)
1. State laws about recognizing foreign judgments
2. Cover only $$ judgments
a. Every jurisdiction has a procedure for $$ damages
b. $$ judgments are past looking, but equitable relief is forward looking
3. Do not cover foreign penal laws
4. Apply to judgments that are final, conclusive, and enforceable where rendered (even
when appeal is pending, as long as judgment is not stayed)
5. Say judgments denying $$ can be used as a defense in a new action (res judicata)
a. Note: New statute puts burden of proof on party seeking recognition to show the
judgment falls under the statute
6. Include mandatory exclusions from recognition judgments that come from a system
that is unfair
a. Note: New statute says individual judgment can be excluded if it was rendered
unfairly in that particular instance or case
7. Include mandatory exclusions from recognition judgments that lack jurisdiction
8. Both include discretionary exclusions from recognition (though new statute has
more):
a. Lack of notice
b. Extrinsic fraud (fraud that prevents you from presenting your case, e.g., process
server lying about your being served)
c. Intrinsic fraud can be fixed within the system that is impartial (in the foreign
jurisdiction)
d. Cause of action violates public policy
i. Note: New statute just allows exclusion if either the cause of action or the
judgment violate public policy
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e. Conflicts with other judgments

f. Contrary to agreement (e.g., forum selection clause)
g. Seriously inconvenient forum achieved by personal service
h. Note: New statute puts burden on party seeking exclusion under these provisions
i. Burden shifting framework: (1) party seeking recognition has burden; (2)
party resisting recognition under this section has burden to show one of these
conditions is met
9. Recognition won’t be refused for lack of personal jurisdiction if:
a. ∆ was personally served
b. ∆ voluntarily appears (other than to contest personal jurisdiction)
c. ∆ consents/waives personal jurisdiction
d. ∆’s domicile
e. Arising out of operation of a business, airplane, business/office
Full Faith and Credit Clause
1. Full faith and credit: Self-executing
2. Congressional authority to determine manner of authentication and effect
a. Note: Modern doctrine says Congress deciding “manner” is a proof of law issue,
“full faith and credit” is a choice of law issue, and “effects” is superfluous. Sachs
think the clause is actually evidentiary, such that “manner” and “full faith and
credit” are both proof of law issues and “effects” is a choice of law issue
b. Congress could pass a national choice of law statute under its “effects” power, but
has never attempted to do so
c. Congress has only legislated under its “effects” power a few times:
i. 28 USC § 1738(a): Child custody
ii. 28 USC § 1738(b): Child support
iii. 28 USC § 1738(c): DOMA
3. Full faith and credit given to valid judgments only
a. If judgment is valid, ∆ cannot relitigate the merits
b. Valid judgments require jurisdiction
III. Enforcement
A. Recognize like an F1 judgment, but enforce like an F2 judgment
1. Judgments from F1 have to become judgments in F2 before they can be enforced.
That is what recognition is about.
2. F2 laws prohibiting enforcement if judgment can no longer be enforced in F1 are
valid
B. 28 USC § 1963 Registration of Judgments for Enforcement in Other Districts
1. Procedures for getting a judgment from one federal court enforced in another federal
court
C. Revised Uniform Enforcement of Foreign Judgments Act
1. Procedures for getting a judgment from one state enforced in another
a. Register with F2 clerk
b. Give notice to ∆
c. Enforce like F2 judgment
IV. Attacks on Judgements
A. Direct attacks on judgments = Reopening the case
1. Challenge occurs in F1 (e.g., on appeal)
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Collateral attacks on judgments = In subsequent litigation in F2

1. Types of collateral attacks:
a. Res judicata: That cause of action has been litigated
b. Collateral estoppel: Those facts were determined
2. To what extent can F2 probe F1’s jurisdiction?
a. If the issue has been fully litigated in F1 or if parties had a fair opportunity to
litigate, then F2 is bound.
i. E.g., If ∆ makes a special appearance in F1 to challenge jurisdiction and loses,
∆ is bound by that judgement in F2. But, if ∆ defaults in F1, then ∆ can
challenge jurisdiction in F2 because jurisdiction has not been litigated.
ii. Note: Subject matter jurisdiction cannot be waived so if there has not been fair
opportunity to litigate, if there is clearly no subject matter jurisdiction, or if
the whole F1 system lacks power, then F2 does not have to recognize
Summary of Exceptions to Recognition under Full Faith and Credit Clause
1. F1 decision is wrong  Requires recognition in F2
a. Only remedy for a wrong F1 decision is appeal through the F1 system
2. F1 decision violates F2 public policy  Requires recognition in F2
3. No jurisdiction in F2  Does not require recognition in F2 (can’t get recognition)
4. No jurisdiction in F1
a. Personal jurisdiction: If it was not litigated in F1  Does not require
recognition in F2 (e.g., default)
b. Subject matter jurisdiction: If there was no fair opportunity to litigate in F1, if
F1 clearly lacks subject matter jurisdiction, of if the whole F1 system lacks
power  Does not require recognition in F2
Jurisdiction
I. General Principles
A. Due Process
1. Due process requires jurisdiction. Full stop. (Pennoyer v. Neff)
II. Personal jurisdiction
A. General jurisdiction
1. Long-arm statute: Is the state asserting jurisdiction?
2. Due process constraints
a. Presence
i. Corporation: Such constant and pervasive contacts to render the corporation
“essentially at home” in the forum state
b. Consent
i. Explicit
 Corporation: Statutory consent is okay (Note: Circuit split about whether
Daimler has changed this)
ii. Implied
 Not opting out of a class action
 Driving on forum’s roads (never been overruled from Hess v. Palowski,
but would probably be analyzed under contacts analysis now)
c. Citizenship/domicile
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Specific jurisdiction
1. Long-arm statute: Is the state asserting jurisdiction?
2. Due Process constraints
a. Minimum contacts with the forum
i. Purposeful availment of benefits and protections of forum law
 Doing business in the forum
 Stream of commerce plus targeting of forum
ii. Effects test
 Intentional torts
iii. Challenges
 Which contacts matters?
 What if a contact is merely alleged? (E.g., mistaken identity cases – what
happens if ∆ truly has never been to the forum state and has no contacts
there, but the allegation is that ∆ has been there; e.g., in Calder v. Jones
the fact that libel occurred in CA counted as a contact in CA, but that
means the substantive law affects jurisdiction)
b. Suit “arises” out of contacts
i. Exact meaning of “arises out of” is undetermined. Proximate cause, but for
cause, evidence, related? Supreme Court is addressing whether “arises under”
just means “related” this term.
c. Fair and reasonable
i. Floating courthouse
Class Actions
1. Due process requires that plaintiffs have:
a. Notice
b. Participation
c. Opt-out
d. Adequate representation
2. Note: FRCP 23 already requires these things; Supreme Court just constitutionalizes
them
3. Extending contacts analysis to plaintiffs in class actions would make class actions
impossible
III. In rem jurisdiction
A. True in rem jurisdiction
1. Property is subject matter of the litigation
B. Quasi in rem jurisdiction
1. Type I: Who owns the property
2. Type II (related): E.g., slip and fall on property
3. Type II (unrelated): E.g., bar fight in France
Jurisdiction requires
1. Minimum contacts
2. Suit arising out of contacts
3. Fair and reasonable
IV. Jurisdiction to tax and escheat
A. Taxation
1. Due Process
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a. Bellas Hess requires physical presence in the state (no taxing “mail”)
2. Dormant Commerce Clause
a. Complete Auto 4-part text for taxation under Dormant Commerce Clause
i. Substantial nexus
ii. Fairly apportioned
iii. Does not discriminate
iv. Fairly related to services provide by state
3. Internal v. external consistency
a. Internal: If every state did this, does that mean we have an excess burden on
interstate v. in-state activity (do not want to punish interstate actors)
b. External: We care about what other states are doing and how to balance the in-
state v. out-of-state value (e.g., bus tickets)
c. Examples:
i. If A and B both tax based on residency, internal consistency is satisfied
ii. If A and B both tax based on source of income, internal consistency is
satisfied
iii. If A taxes based on residency and B taxes based on source of income, internal
consistency is satisfied (people who live in A but work in B are just unlucky)
iv. In Wynne, A taxed residents and source, which means interstate earners would
be punished if all states did that
B. Escheating
1. Debtor’s domicile can escheat property until the state of the creditor’s last known
address claims it
Class Actions
I. Characteristics of a class action
A. Predominance: Common questions of law and fact predominate
Superiority: Litigating as a class action is the fairest and most efficient way to go
Conflict of laws is relevant to this step because the laws that apply to the various claims will
determine how much a legal issue predominates and how superior it is to litigate as a class
II. Choice of law in class actions
A. Is there an actual conflict among the claims? If not, apply forum law.
If there is an actual conflict, only apply forum law if it is not arbitrary nor fundamentally unfair.
1. How do you determine if there is an actual conflict?
a. Plaintiffs (parties seeking class certification) have initial burden to show that there
are no significant variations in the various state laws. Do not have to disprove
hypothetical conflicts.
b. Defendants (parties opposing class certification) have burden to show there is an
actual conflict.
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Constitutional Constraints on Choice of Law

I. Full Faith and Credit
A. When can forum state apply its own law?
1. Allstate, Inc. v. Hague: Forum state must have contacts and interests such that
application of its law is “neither arbitrary nor fundamentally unfair”
a. Note: After-acquired domicile by itself is not enough to create a state interest
under Allstate
b. Look to Stevens Concurrence for my policy question
Can a forum close its doors to foreign causes of action?
1. No! Full Faith and Credit does not allow discrimination against out of state causes of
action. (Hughes v. Fetter)
Is it a Full Faith and Credit violation if the forum state misapplies a sister state’s law?
1. Only clearly established errors that are brought to the deciding (F1) court’s attention
will be reviewed under Full Faith and Credit (Sun Oil Co. v. Wortman)
II. Due Process
A. Analysis is the same as Full Faith and Credit Clause.
III. Sovereign immunity
A. State of Nevada v. Hall: Allows forum state to subject a nonconsenting state to
jurisdiction
Franchise Tax Bd. v. Hyatt: When forum state subjects a nonconsenting state to jurisdiction, it
cannot discriminate against that state by imposing higher damages than it would against itself
IV. Commerce Clause
A. Dormant Commerce Clause
1. Prohibits state legislation that discriminates against out-of-staters. Subject to strict
scrutiny.
2. Prohibits neutral state laws that burden interstate commerce. Subject to balancing of
burden and local interest.
B. Extraterritoriality
1. Presumption against extraterritoriality: Congress must clearly express intent for laws
to apply extraterritorially
2. Five categories of prescriptive jurisdiction:
a. Territorial (conduct with effects in territory)
b. Nationality (of perpetrators)
c. Protective principle (threatens nation’s security or government operation)
d. Passive personality (of citizen victim abroad)
e. Universality (piracy, crimes against humanity, etc.)
C. Inconsistent regulations
1. Concern that different states will have different laws that will make it impossible to
comply with both
15

Sachs - Conflict of Laws Outline

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Sachs - Conflict of Laws Outline

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Conflict of Laws 220.

2. Domicile matters for:

IV. Criticisms of interest analysis

Defining interests in protecting plaintiffs/defendants based on domicile presents constitutional

Leflar’s Better Law

IV. Statute of Limitations

Evidence Proof of law Authentication

e. Conflicts with other judgments

Collateral attacks on judgments = In subsequent litigation in F2

Constitutional Constraints on Choice of Law

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