Law School Resources

CONFLICT OF LAWS

I. Introduction

A. The Nature of the Subject – Conflict of laws concerns the issues that arise from a dispute’s having contact with more than one sovereign.

B. The Scope of the Topic

1. Jurisdiction over the person or property: this topic is covered in AL civil litigation.

2. Choice of Law

a) *Interstate (and international) choice of law – choose b/w laws of 2 co-equal sovereigns.

b) Choosing b/w federal and state law – this topic is covered in Civ Pro and Con Law (Erie doctrine and supremacy clause).

3. Recognition of foreign Judgments – when one state/country enters judgment, to what extent will other states/countries recognize it.

II. Choice of Law – Introduction and Constitutional Limits on Choice of Law Decisions

A. Introduction to Choice of Law – when a court hears a case that involves parties from or activities in more than one state, it must decide which state’s law to apply.  To make that decision, it applies the choice of law doctrine of the state in which the court sits.

B. Constitutional Limits on Choice of Law Decisions

1. Applicable Constitutional Provisions

a) Due Process (No State shall “deprive any person of life, liberty, or property without DP of law”) – applicable to the choice of law context b/c choice of law is regulated by DP.

b) Full Faith and Credit (“Full faith and credit shall be given in each State to the public Act, Records, and judicial proceedings of every other State.”)  Requires each state in the US to recognize decisions of all other states (more than just judgments).

2. Early Cases – tests for DP and FF&C have been abolished in favor of modern tests.

3. Current test: chosen state must have a significant contract or aggregation of contracts, creating state interests, such that choice of law is neither arbitrary nor fundamentally unfair.

a) There are constitutional limits on a state’s ability to determine which state’s laws to apply, but this test is pretty lenient.

b) Application of a particular statute’s law is constitutional if

(1) There is contact b/w the state and the case and

(2) Those contacts must create an interest in the case.  The test will often permit any number of state law to apply.  Usually only will apply when state’s apply their own law to a case touching many states.  (even then, probably okay)

III. Choice of Law Theories (Analytical Approaches)

A. The Array of Theories: see below

B. The Traditional First Restatement Approach: “Vested Rights” and Territoriality – still used in a handful of states, including AL.  Use choice of law on all substantive issues.

1. The Concept: we view a state’s or country’s law as applying only within that state/country’s boundaries.  Otherwise, we apply the law of the state where the COA came into existence.  Look for the last even that occurred in regard to the COA: that is the state whose law applies.

2. The Application: 3 steps

a) Characterize the Area of Law (e.g., tort, contract, procedure) and determine whether the issue is one of substance or procedure.

b) Determine the Applicable Choice of Law Rule

(1) Torts: law of the place where the wrong (injury) occurred (lex loci delicti).  Usually the place of injury.

(2) Contracts: law of the place where the contract was made (or was to be performed).

(3) Procedure: law of the forum.

c) Apply the Rule to Identify the Jurisdiction Whose Law Applies

3. Examples

a) P and D are in a car accident in State X.  P files a negligence action against D in State Y.  State X (where the accident occurred) still adheres to the common law doctrine of contributory negligence while State Y (where the case is pending) applies a doctrine of comparative negligence.  Which law applies in P’s lawsuit? This is a tort action and this is a substantive issue.  We apply the law of the place of the wrong, which is state X; therefore, contributory negligence.

b) Same case.  D serves interrogatories on P. The rules in State X provide that a party has 20 days from the date of service to answer interrogatories while the rules in State Y provide that a party has 30 days to answer.  When are P’s responses to the interrogatories due?  This is an issue of procedure.  The forum applies its own law.  Y is the forum, so it applies own law, giving 30 days to answer.

4. Escape Devises

a) Characterization: an essential step in the vested rights analysis.  But, there is no clear way to characterize every case.  Some courts just recharacterize to get the choice of law they want.

b) Public policy: courts may decline the application of another state’s law if that application would violate fundamental public policy of AL.  Must violate some fundamental public policy.  

(1) D incurs a gambling debt to P.  The debt arose and was payable in NV, but P filed an action on the debt in AL.  If NV law deems such debts enforceable as a matter of contract and AL law deems such contracts as void b/c they are against public policy, what result?  This is a k matter. The K came into existence in NV.  However, with public policy exception, AL could refuse to enforce the NV law if it is fundamentally at odds with AL policy.

c) Renvoi: when applying another state’s law, should one apply only that state’s internal law or also that state’s choice of law doctrine (ex: what state TN’s law says to apply)? You look at the other state’s whole law, including their choice of law doctrine.  Escape devise b/c AL could look at TN’s choice of law doctrine and use the court’s law they apply.  Most states ignore Renvoi and just apply internal law.

5. Domicile

a) The Concept – one’s true, fixed home.  A significant relationship of that person to that state. 

b) The Rule of Domicile - Usually gives the state pj over the DF.  The law of one’s domicile will govern in certain cases.

c) Determining Domicile

(1) Domicile by operation of law (child takes parent’s domicile)

(2) Domicile of choice (presence plus intent) - The person must be physically present in a place and simultaneously intend to make that new place one’s home.

(a) Ex: M (a domiciliary of MI) packs everything, sells his home, and moves to FL to settle there for the rest of his life.  He is killed in GA while en route.  What was M’s domicile at the time of his demise?  MI; a person must have one and only one domicile.  One retains old domicile until establishing a new one.  Once he arrived at new house, it is a new domicile.

C. Government Interest Analysis – make choice of law on each issue, not case as whole.

1. The Concept – makes choice of law by analyzing the policies behind each law and how those policies will be advanced through application of that law in this case.

2. Application –

a) Identify the policies that underlie the conflicting laws.

b) Determine whether the laws’ application in the case at hand would serve the policies that underlie the law.

(1) This inquiry includes a determination each state’s policy extends to the circumstances of the case (i.e., whether each state has a legitimate interest in having its policy applied to the case).

(2) This analysis will yield one of 2 possible results: 1) false conflict or 2) true conflict.

c) Identify False Conflicts and apply the law of the only interested state.

d) Resolve True Conflicts – not only do the law’s conflict, the policies conflict as well.

(1) Defer to the forum’s law – if the laws conflict, apply the law of the forum state.

(2) Balance the states’ interests

(3) Other factors

(a) *Reexamination – reexamine the policies and see if you can take a more restrained view.

(b) Comparative impairment – apply the law of the state whose policy would be most impaired if the law was not applied.

3. Examples

a) (False Conflict) – P and D are citizens of MI.  With D driving, they take a short trip to Ontario.  D’s insurance co. is a MI corp. and sells insurance only in MI.  P and D are in an accident in Ontario, and P is injured.  Assuming that Ontario (where the accident occurred) has a “guest statute” rendering drivers immune from liability to guests riding in their cars and MI (where both parties live) does not, which state’s law should apply under government interest analysis?  There are conflicting laws, so we have to look at policy behind each law. 

(1) What are Ontario’s reasons for the law?

(a) To eliminate collusive lawsuits - the insurance co. is the one who ends up paying, so P and D might fake accident/injury.

(b) To protect drivers from ungrateful guests.

(i) Would application of the law further these policies?  No; this would not affect insurance rates in Ontario or Ontario drivers.

(ii) Does Ontario have an interest? No; these are MI parties.  Also, Ontario has no interest in protecting a MI insurance co.

(2) What are MI’s reasons for the law?

(a) Policy is to compensate victims of tort.

(i) Does MI have an interest?  Yes; MI driver and passenger and insurance co.

(3) Ontario has no interest in having their law applied and MI does, so there is false conflict.

b) (True Conflict) – J is domiciled in NY.  He travels to MA to have surgery performed by Dr. M in MA hospital.  As a result of complications during surgery, J dies.  J’s wife, the executrix of his estate, files a wrongful death action against Dr. M alleging malpractice.  MA statutorily limits recoveries in wrongful death actions based on med mal to $50k. NY has no such limit.  Does the liability limit apply to the wrongful death action brought by J’s wife?  Look at laws and ask what the policies are:

(1) MA policy: to protect DFs from excessive liability; to keep insurance lower.

(a) MA interest?  Yes; DF is MA doctor.  Interest in avoiding excessive liability of MA doctors.  Also, surgery in MA and MA has an interest in protecting the reputation of surgeons in MA.

(2) NY policy: any law by which compensatory damages are awarded is aimed to compensate tort victims; deterrence.

(a) NY interest?  Yes; NY law would be compensating NY PLs.  But, NY has no real interest in regulating conduct in MA. 

(3) This is a true conflict.  Us the law of the forum state.

D. The “Most Significant Relationship” Approach (The Second Restatement) – Majority

1. The Concept: apply the law of the state which has the “most significant relationship” to the issues at hand.

2. Application: determine the state with the most significant relationship by applying the following controlling principles and relevant contacts:

a) Controlling principles:

(1)  the needs of the interstate and international judicial system;

(2) *the relevant policies of the forum;

(3) *the relevant polices of other interested states and the relative interest of those states in the determination of the particular issue;

(4) The protection of justified expectations (usually just in k actions);

(5) The basic policies underlying the particular field of law;

(6) Certainty, predictability, and uniformity of result; and

(7) The ease of determining and applying the law chosen.

(a) *2 & 3 are the Government Interest analysis. Always consider these first.  Apply others only if they have particular importance.

b) Relevant Contacts

(1) Torts: places where injury and conduct occurred; place of parties’ domicile, residence, place of incorporation, and place of business; and place where the parties’ relationship is centered.

(2) Contracts: places of contracting, negotiation, and performance; location of the subject matter of the contract; and place of parties’ domicile, residence, place of incorporation, and place of business.

c) Default Rules – the Second Restatement lists the state which will usually have the most significant relationship in a given case.

E. The Lex Fori Approach – the forum state just applies its own law, no matter what.  (Still constitutional limitations)  Very limited application.

F. The Better Rule Approach – a few states apply (upper Midwest).  The court selects and applies the substantive law that it deems the best law.  In making that determination, the court evaluates the following five “choice-influencing considerations”:

1. Predictability of results

2. Maintenance interstate and international order

3. Simplification of the judicial task

4. Advancement of the forum’s governmental interests; and

5. Application of the better rule of law – very forum biased.  Leads to almost same result as lex fori.

G. Federal District Courts – sitting in diversity

1. Apply the choice-of-law doctrine of the state in which it is sitting in diversity cases.

2. Transferred cases: if case is transferred into federal court of another state (from one state’s federal court to another), always apply choice of law doctrine of the transferor state.  (unless original venue improper)

IV. Choice of Law Doctrine for Specific Areas of Substantive Law

A. Torts

1. First Restatement: law of the place of injury.

2. Second Restatement and Government Interest Analysis: apply law of the state with the most significant relationship. Includes analysis of underlying policies and state’s interest.

3. Application

a) Existence and elements of a COA: Strict Liability

(1) Ex: A NC comp. Manufactures a product that is shipped to MI where it is purchased and used by a MI consumer. The MI consumer sues the NC manufacturer in a MI court.  Assuming that MI recognizes a doctrine of strict products liability, while NC requires products liability PLs to prove negligence, which state’s law should the MI court apply? 

(a) First Restatement / vested rights approach – place of injury is MI, so apply MI law.

(b) Government interest –

(i) NC:

(a) Policy – to protect manufacturers; to keep insurance low; encourage manufacturing business in NC.

(b) Interest?  Yes, the manufacturer is from NC.

(ii) MI:

(a) Policy – easier to recover; full compensation for injury from tort.

(b) Interests?  Yes; MI PL.

(iii) True conflict – apply law of the forum state.

(c) Second restatement / most significant relationship – determined by looking at a number of factors.  Included in those factors is the governmental interest factors.  Probably end up with a 2d restatement default rule: usually state with most significant relationship is the place of the wrong.

b) Defenses to Liability: Guest Statues

(1) Same hypo as above:  P and D, MI citizens, in accident in Ontario.

(a) First restatement / vested rights: Ontario was the place of injury, so apply Ontario’s law.

(b) Government interests: O has no interest, MI does, so apply MI law.

(c) Second Restatement / most significant relationship – end up with false conflict and apply MI law.

c) Damages and Damage Limitations

(1) A MI driver caused an automobile accident in WI, killing a MN resident.  The estate of the MN resident filed a wrongful death action in a MI court against the MI driver.  Assume that WI law limits recovery in wrongful death cases to $25k and that MI law does not limit recovery in such actions. Which law should the court apply on that issue? 

(a) First Restatement / vested rights – substantive tort issue, so apply law of place of wrong, here WI.

(b) Governmental interest:

(i) WI

(a) Policy: protect DFs

(b) Interest?  Not really; meager interest in protecting MI interests.

(ii) MI

(a) Policy: full compensation for those killed by tortuous conduct.

(b) Interest?  Not really.  PL from MN.

(iii) This is an “unprovided for case” – neither court really has an interest.  This is rare.  Court applies law of forum.

(c) Second restatement / most significant relationship – first do government interest analysis.  Probably move on to default rule: for tort cases, usually the place of injury, here WI.

d) Dram Shop Acts

(1) A MI tavern serves alcohol to a patron who is visibly intoxicated.  The patron drives to OH where he injures P in a car accident.  P files an action in MI against the MI tavern, seeking damages for her injuries.  Assuming that MI has a dram shop act which holds taverns liable for injuries by their patrons under these circumstances and OH does not, which state’s law should the MI court apply?

(a) First Restatement: substantive tort case, so use place of injury.  OH law says no recovery.

(b) Government interest analysis:

(i) OH

(a) Policy: protect tavern owner; places responsibility on drunk driver.

(b) Interest?  No; MI tavern owner.

(ii) MI

(a) Policy: tavern owner is liable; compensate victims of tort; regulate/deter tortuous conduct.

(b) Interest?  Compensation - probably not b/c OH citizen; regulate/deter – probably so b/c MI tavern owner.

(iii) False conflict: MI has interest and OH doesn’t.  Apply MI law.

(c) Second Restatement: look at government interest first; no other factors have particular applicability, especially in light of false conflict.

e) Vicarious Liability

(1) Ex: P is employed by an AL railroad co.  A fellow railroad employee negligently coupled two rail cars in AL.  The faulty coupling then injured the PL in the course of his employment as the train traveled through MS.  P sues his employer to recover for his injuries. AL law holds employees liable for injuries suffered by employees in the course of their employment.  MS law holds that employers are not liable to employees for injuries caused by fellow employees.  Which law governs P’s action against his employer? 

(a) First Restatement: no recovery.

(b) Government Interest Analysis:

(i) AL –

(a) Policy: compensation of PL.

(b) Interest?  Yes; AL employee, employer, and employment relationship centered in AL.

(ii) MS -

(a) Policy: protect employees

(b) Intent? Not really, no MS employer involved.

(iii) False conflict – apply AL

(c) Second Restatement: look to government interest analysis and other relevant factors: where the relationship is centered. Here, AL.

B. Contracts – is there a contractual choice of law clause, i.e., a k clause that tells you where disputes must be litigated?

1. Contractual choice of law provisions

a) Generally enforceable

(1) Always enforceable with respect to issues on which the parties have power to contract.

(a) Ex: if the issue is one which parties could have handled in the k, a choice of law clause is enforceable.  Dealing with laws that are gap fillers.

(2) Usually enforceable even with respect to issues on which the parties do not have power to contract.  Subject to two exceptions (below).

b) Exception: matters beyond the parties’ power to contract (i.e., the issue is one which the parties could not have dealt with by express contractual provision), where either:

(1) The chosen state has no relationship to the parties or the transaction; or

(2) The chosen law is contrary to fundamental policy of the forum state (or a state that has a greater interest in the issue).

c) Examples;

(1) Seller (AL business) enters a contract to design and install computer software in buyer’s stores throughout the Southeast.  The contract provides that all issues arising under the contract shall be governed by the law of GA, the state where buyer’s headquarters is located.  A breach of warranty dispute arises concerning installation in one of buyer’s stores in AL.  Does GA or AL law govern the warranty issues?  The parties could have resolved warranty issues in the k – there is full freedom to k.  Parties can accomplish the same thing by incorporating the law of a given state.  A choice of law clause is enforceable.

(2) Same case as above, except the contract provides that all issues shall be governed by the law of the state of CA, a state that has no relation to the parties or transaction - The warranty matter is one on which parties are free to contract, so any choice of law clause is enforceable.  CA law governs.

(3) P (a citizen of NV) and D enter a k relating to a gambling enterprise in AL.  NV law deems such ks as valid and enforceable, but AL law deems them void as against public policy. The contract provides that it is governed by NV law.  P sues D in AL on a claim arising from the contract.  What law applies?  The validity of gambling k is not something we can contract; it is void.  The choice of law clause could be enforced if forum has a relationship with parties involved and the law is not contrary to fundamental policy.  This is the issue.  AL court would have to decide this. Courts often enforce, even if there is no freedom to k, as long as it doesn’t violate fundamental public policy, i.e., at odds with central core ideas of justice.

2. Choice of Contract Law (Absent a valid choice of law clause)

a) Traditional First Restatement Rules

(1) Issues Relating to a Contract’s Existence of Validity: Apply the law of the place where the contract was made (usually defined as the place where the last even occurred that made the contract binding / the place of acceptance).

(a) Ex: P and D enter a k in GA by which PL sold a painting in AL.  GA does not require such contracts to be in writing while AL does.  Which state’s law determines whether a valid contract of sale exists?  Vested rights – apply law of case where k came into existence, here GA.  This is a valid k.

(2) Issues Relating to Performance: apply the law of the place of performance.

(a) Ex: P and D enter a k in GA by which D is to perform certain services in NC.  P sues D alleging that D failed to perform to the standards specified in the contract.  Which state’s law governs the adequacy of D’s performance?  K case and substantial issue: Q is whether there was performance.

(3) Contracts Affecting Title to Land: apply the law of the state where the land is located.

b) Second Restatement Tests and Government Interest Analysis

(1) Look at most significant relationship – look at policies and interests and whether this case would further these.  Same analysis as torts. 

(2) Some of those other factors will come into play with contracts, though, and should influence choice of law:

(a) Protecting justified expectations        

(b) Certainty and predictability

C. Procedure

1. General Rule

a) First Restatement Rule: forum applies its own laws on matters of procedure.

b) Second Restatement and Government Interest Analysis: use same analysis, even if it is a matter of procedure.  Forum always has greater interest, so usually end up using forum’s procedure under all analyses.

2. Statutes of Limitation

a) A traffic accident occurs in OH involving Otto (resident of OH) and M (a resident of MI). Otto sues M in a MI court.  The claim is barred under OH’s statute of limitation but not under MI’s.  What result?

(1) Borrowing statutes (borrow S/L of someone else; consult first to determine whose law governs): generally provide that the shorter of two potentially applicable statutes of limitation apply.  Here, MI statute might say apply the shorter one.

(2) The First Restatement (if there is no borrowing statute) – treats S/L as procedural and applies the statute of the forum (absent applicable borrowing statute).

(3) Government interest analysis: analyze policy and issue of each state.

(a) OH:

(i) Policy: court’s interest in efficiency; protects DF – provides repose over time

(ii) Interest?  No interest in protecting MI court; no OH DF involved à NO.

(b) MI:

(i) Policy: no particular opposition to hearing case.

(ii) Interest?  Some, like efficiency of applying own law.

(c) MI law applies.

(4) The Second Restatement/Most Significant Relationship – look at government interest analysis; but one court may have greater interest in additional facts.

3. Procedural Matters – the following were traditionally regarded as procedural and thus governed by the law of the forum:

a) Civil practice rules,

b) Burdens of proof, and

c) Direct action statutes.

4. Substantive Matters – the following were traditionally regarded as substantive and thus governed by the law that governs the validity of the contract:

a) Statutes of fraud, and

b) The parole evidence rule.

D. Real Property

1. First Restatement: apply the law of the place where the property is located (the situs).

2. Second Restatement and Government Interest Analysis: analyze policies and interests in same manner.  Usually end up with state where land is located.

E. Conveyance of Personal Property (other than upon death or divorce)

1. Tangible property

a) First Restatement: apply the law of the place where the property is situated at the time of the pertinent transaction (i.e., the law of the situs).

b) Second Restatement and Government Interest Analysis: look for place with most significant relationship; same analysis – use situs.

2. Intangible Property

a) First Restatement: apply the law of the state where the transfer occurred; which many courts have interpreted to be the domicile of the debtor. (Q must be title of stock, not k involved)

b) Second Restatement and Government Interest Analysis: same analysis.

F. Decedents’ Estate

1. Real property

a) First restatement: apply the law of the place where the land is situated (law of the situs), whether devolution of the property is by will or intestate succession.

b) Second restatement and government interest analysis: same analysis; usually will be where the land is situated.

2. Personal property

a) First restatement: apply the law of the decedent’s domicile at the time of death, whether she dies intestate or with a will.

b) Second restatement and government interest analysis: same analysis.

3. Example

a) M, a domiciliary of MI, dies in an accident in NY. At the time of her death, M owned 1) $100k deposited in MD bank; 2) a car located in NY; and 3) land in TX.  Which state’s law governs the disposition of M’s property by will or by intestate succession?

(1) Vested rights

(a) Money and car – pass pursuant to law of domicile, i.e., MI.

(b) Land – passes pursuant to state where land situated.

(2) Most Significant Relationship – can’t answer b/c we don’t know the laws.

G. Corporations

1. First Restatement: apply the law of the state of incorporation to issues relating to the corp.’s creation, its dissolution, its internal affairs, and the liability of its officers and directors to SHs.

2.  Second Restatement and Governmental Interest Analysis: same analysis; policies/interest.  Default is the state of incorporation.

3. Example:

a) Aircraft, Inc., which manufacturers jet airliners, was incorporated in DE.  Its primary production facilities are in WA, and its headquarters are in IL.  SHs in WA and IL file an action against Aircraft and its directors claiming that their right to vote on the selection of corporate directors had been abrogated.  What law governs those claims? 

(1) First restatement: matter of internal affairs, so DE.

(2) Government interest analysis – look at policies/interests.  DE still has a keen interest.

(3) Second restatement: look for most significant relationship.  Look at government interest and other factors, especially 1) certainty and predictability, and 2) justified expectations.  Probably state of incorporation.

b) A truck driven by an employee of Aircraft, Inc. struck P in Seattle.  P filed an action against Aircraft under the doctrine of respondeat superior, seeking damages for the truck driver’s negligence.  What law governs PL’s claim? 

(1) First restatement / vested rights approach – this is not a matter of internal affairs. Just a tort case; so apply place of injury’s laws.

(2) Government interest analysis: look at policies and interests – probably WA.

(3) Second restatement / most significant relationship -  look at gov’t interest and any other relevant principle.  Default: place of injury.

H. Other areas (family law, partnership, & agency): see Bar/bri outline at 22-24.

1. Principles that may preclude application of foreign law

a) Public policy – one state may preclude another state’s laws if fundamentally at odds with forum state.  Not applicable in pure government interest analysis.

b) Penal and Tax Laws – if other state’s laws are penal or tax laws, state doesn’t have to enforce.

c) Renvoi: American courts generally look to the internal law of the other state, but may apply the whole law of the other state (i.e., including the other state’s choice of law doctrine) to the following issues: 1) validity of marriage; and 2) disposition of interests in land. 

V. Recognition of Foreign Judgments

A. Role and Significance – judgment of one state/country may have relevance if

1. DF has no property in state; must take to another state to execute on judgment.

2. Party in case in second state or country may assert res judicata effect.  Does the judgment preclude the second action?

B. Judgments of the Courts of Sister States (US courts)

1. The Full Faith and Credit Clause – requires the courts of a state to give the same effect to the judgment of a sister state’s court that rendering court would give it.

2. 3 exceptions to FF&C – FF&C is not required if:

a) Lack of jurisdiction: the first court lacked pj or smj.  If jurisdiction was litigated in court, then that decision will be final and cannot be resurrected in court 2.

b) Look at finality: FF&C applies only to final judgments.  Not final ex: equitable decree, i.e., injunction.

c) Judgment on the merits: if not on the merits, no FF&C.  Many judgments are on the merits even though they don’t seem like it.  Judgment on merits = any final ruling in a case that the court thinks should have final effect (jury verdict, summary judgment, DV).  This also includes default, sanctions for refusing discovery that results in default.  Dismissal for lack of venue is not a judgment on the merits.

3. Examples

a) P sued D in NV for payment of a gambling debt and obtained a final judgment.  P now seeks to enforce the judgment in AL.  Assume that AL law refuses enforcement of gambling debts b/c gambling is against public policy.  Must AL enforce NV judgment?  Yes; the NV judgment is final, on the merits, and within NV’s jurisdiction.  AL must give FF&C.  AL cannot look behind the judgment and examine the merits.

b) A (AL) causes an accident in B’ham, injuring T (TX).  T sues A in TX court.  She obtains a default judgment when A does not appear.  T seeks to enforce the judgment in an AL court.  What result?  AL must give FF&C to TX judgment unless an exception applies.  If AL  courts agree TX court did not have jurisdiction, AL does not have to give FF&C.

c) Same as above, but A appeared in TX court and contested the court’s jurisdiction over him.  The TX court ruled that it did have jurisdiction.  A then did not appear further, and the court entered a default judgment.  What result when T seeks enforcement in a AL court?  TX judgment gets FF&C.  A can’t relitigate jurisdiction. Al should have appealed if he thought unfair.

d) Same as above, except the accident occurred in TX.  T obtained a default judgment in TX court without A appearing.  What result when T seeks enforcement in an AL court?  A will probably lose the jurisdiction issue; TX had jurisdiction.  AL court will probably decide against him.  AL court will enforce judgment.

C. Federal District Courts and State Courts

1. State law governs (absent applicable treaty) – AL gets to decide what effect to give foreign judgments.  Most states enforce in same way as if sister state. Just require just and regular proceedings. 

2. Comity – Some states add a requirement of reciprocity; e.g., we will enforce French judgments if French will enforce ours.

3. Uniform Foreign Money Judgments Recognition Act – treats foreign country’s money judgments much like sister state judgments, but it does not apply to judgments for taxes, penal judgments, or judgments for alimony or support.

VI. Answering a Conflicts Question on the Bar Exam

A. Recognize a Conflicts Issue: question that involves parties, events, transactions in more than one state – does the state court have jurisdiction over party in another state?

B. Jurisdiction

1. Apply applicable Long-Arm Statute

2. Due Process Analysis (contacts and fairness) – does the jurisdiction comport with DP?

C. Choice of Law

1. The Array of Approaches (mainly vested rights, most significant relationship.

2. Contract Cases

a) Choice of law clauses: is there such clause and is it valid and enforceable?  Determine the enforceability of any choice of law clause.  Look at clause with each analysis.

b) Absent choice of law clause: not the absence of a choice of law clause.  Then note and apply the First Restatement Rule and analyze the choice under government interest analysis and the Second Restatement.  Analyze other approaches as time permits.

3. Other cases: note and apply the traditional First Restatement (vested rights) rule.  Then analyze under Government Interest and the Second Restatement.  Analyze other approaches if time permits.

4. Questions with insufficient facts: cannot apply most substantial relationship if you don’t know the substantive law.  We can answer vested rights.  Tell examiners that.

D. Recognition of Foreign Judgments

1. Judgments of Sister-state courts

a) Note FF&C

b) Check for applicability of exceptions (jurisdiction, lack of finality, not on the merits).

2. Judgments of Federal Courts

a) Note statutory equivalent of FF&C.

b) Check for Applicability of Exceptions

3. Foreign-Country Judgments

a) Note the applicability of state law

b) Note and apply the concept of comity.

c) Note and apply the Uniform Foreign Money-Judgments Recognition Act.