Conflict Of Laws Outline
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Conflicts of Law - Prof. John C. Harrison UVA Law - Fall 2016 General Principles/Themes
Laycock's Article o States are equal: Horizontal federalism, no state law is supreme to another's o States are territorial: presumed from pre-founding that they are fundamentally geographic
Kramer vs. Currie Interest Analysis
(Un)Certainty o Ex ante: what are legal consequences of decisions/actions o Ex post: once in court, which law applies
Finality: We are not final because we are infallible, we are infallible because we are final.
Theme: 1738 is dynamic conformity (Allen v. McCurry)
NY approach: Conduct regulation (place of conduct) v. loss allocation (flexible system from Edwards). Tort law is generally loss-allocating, but also is designed to incentivize conduct--consider primary purpose of the law. For statutes, look to legislative history and context.
Legal Realism o First Stage: Courts hide behind rules and don't explain why they are really deciding the case the way they are. o Second Stage: what they are doing that they aren't saying (or what they should be doing) is something else (for conflicts, interest analysis). E.g., Posner: common law is providing economically efficient outcomes
I. Recognition and Enforcement of Judgments in Other Systems (_Res, _Preclusion) Terminology
Review: o Direct Review: e.g., 4th Cir. review of case from E.D.V.A. o Collateral Review (collateral attack): e.g., Court has to review some aspect of Case 1 to adjudicate Case 2
Rule: Generally barred by rules of finality
Exception: Jurisdictional attack. May not argue that Case 1 was incorrectly decided, but may argue that court lacked jurisdiction to decide Case 1.
Preclusion: o Claim Preclusion (res judicata): Claim litigated to conclusion cannot be litigated again
Operates in both directions:
Barred: If D wins P can't sue again (terminology - D is barred)
Merger: If P wins P's old right to sue has merged with the judgment and doesn't exist anymore (see Baker v. General Motors open issue)
Claim Splitting: must bring the entire claim
NOTE: depends on definition of claims (Choice of Law) o Issue Preclusion (collateral estoppel): issue litigated cannot be re-litigated by that party
Determination on an issue on one claim affects all claims o Traditional Rule of Mutuality: Only operates against those who have litigated the issue
Some states allow for nonmutual preclusion, for either or both issue and claim preclusion
Procedure o Registering judgments: some states allow you to register judgments from another state to have them enforced in the the state o Suits: some states require you to file suit to enforce a judgment from another state in the state Full Faith and Credit and Its Limitations
RULE: both claim preclusion and issue preclusion have preclusive effects in other jurisdictions (federal or state) as they did in the jurisdiction where the claim/issue was decided (see Baker v. General Motors rule 1)
Judgments are final regardless of whether they are correct (Fauntleroy) o But see Jurisdictional Challenges: Presumption that a second court may not inquire into jurisdiction if (1) the issue of jurisdiction or (2) the underlying facts necessary to determine jurisdiction were litigated (Durfee).
May be rebutted by showing a reason for attack specific to this case (e.g., if state court decides it has jurisdiction over a patent case) (see Kalb)
But see Matsushita: Court can have jurisdiction to assess strength of a claim (e.g. to evaluate fairness of a release agreement) that it does not have jurisdiction to adjudicate. 2
Who is bound by preclusion?
Parties to the case Those in privity with parties to the case (Yarborough: standard is whether their interests were represented)
Scope: enforcement - courts may not be bound by enforcement laws (e.g., SoL for enforcement) of the issuing state (see Baker v. General Motors, McElmoyle v. Cohen)
Section 1738 Full Faith and Credit Statute: "Courts must treat the judgments of another state's courts the same way courts of the issuing state would treat it." RULE: both claim preclusion and issue preclusion have preclusive effects in other jurisdictions (federal or state) as they did in the jurisdiction where the claim/issue was decided
NOTE: Did not choose Privileges and Immunities Clause method, which would have required VA to treat MD judgment as VA treats VA judgments. Instead, VA must treat MD judgment as MD treats MD judgment.
About predictability. State Courts Only: 1738 only applies to the judgments of state courts.
State Administrative Agencies: Not courts within the meaning of 1738, so even if a state gives preclusion to their decisions, other states aren't obliged to apply that state's preclusion laws to the administrative proceeding - they are free to do what they want.
Federal Courts: Their judgments are not covered by 1738. Preclusion on their judgments is federal common law.
They do have to follow preclusion laws of another state that issued its own judgment NOTE: Enacted under Congress' powers from A4 Full Faith and Credit clause
Article IV: policy Full Faith and Credit Clause: Ensures states will mutually recognize each others' decrees. Can be read to include either ex ante predictability or ex post predictability - either parties know where the decree was issued (ex ante - FF&C Statute) or where they are being sued (ex post - not chosen). Privileges and Immunity Clause: about anti-discrimination and ex post predictability. Prevents out-of-staters from being treated differently under the law than state citizens.
Fauntleroy v. Lum (1908 p. 523) Incorrect Judgments Are Final FACTS: P and D made options contract in MS which is illegal and void in MS as gambling. Arbitrator misapplies MS law and gives P award. D doesn't comply with award, thinking it's unenforceable in MS. P tags D in MO w/ jurisdiction and MO enforces the award (also misapplying MS law). P files to record judgment in MS, which refuses to recognize MO judgment. RULE (Holmes): MO award is final even though it got MS law wrong. MS must enforce MO judgment per Section 1738.
EXCEPTION: can challenge final judgment if can prove defect of jurisdiction (either 1. Deciding court didn't have jurisdiction to decide
such cases or 2. Court where challenged doesn't have jurisdiction to enforce such judgments) DISSENT (White): MO court, a creation of MO legislature, cannot undermine public policy of MS, which can only be set by MS legislature.
Yarborough v. Yarborough (1933 p. 527) Privity & Final Decrees/Modification FACTS: Parents divorce in GA. GA court orders lump sum child support payment as final decree. Daughter lives in SC and tags father with jurisdiction there. SC court enters new child support decree with recurring payments. RULE-Privity(Brandeis): parties in privity are bound by a judgment regardless of their participation in a litigation
APPLICATION: Parents represented daughter's interests during GA proceedings, so GA decree is binding on her. RULE-Finality: basic FF&C statute - SC must respect finality of final GA decree that could not be modified in GA. But FF&C would allow a decree subject to modification to be modified by other states (see below for UIFSA, family law carveout).
APPLICATION: cannot tack on more child support when the lump sum was already decided on as the sole and final remedy from the divorce suit RULE-TERRITORIALITY (Alternate holding): Father remains GA citizen governed by laws of GA. SC cannot tell GA citizen a GA decree is no longer binding on him. DISSENT (Stone): lump settled relationship with wife, doesn't govern ongoing relationship between parent and child. In essence, SC law applies extraterritorially. Cf. Worthlee for ongoing (subject to modification) support decree
See also UIFSA under Worthlee
Criminal Prosecutions: states do not enforce criminal laws of another state. Instead, it is a question of extradition.
Thomas v. Washington Gas Light (1980 p. 540) - Tort vs. Insurance, Constitutional Limit FACTS: DC resident employed by DC employer, was injured on job in VA. VA Industrial Commission approves worker's compensation agreement which is to continue during incapacity. Later, employee tries to get compensation under DC WC Act. After P recovers under VA statute?
Magnolia: Workers comp judgment from TX had preclusive effect in LA. (Plurality would overrule this, but 5 votes say keep it)
McCartin: Workers comp judgment from IL did not have preclusive effect in other states because IL did not intend its statute to apply extraterritorially. Harrison says overruled by Thomas (Stevens+Rehnquist=6 votes): 1738 says preclusive effect within the state matters, not whether underlying statute is extraterritorial. JUDGMENT: VA worker's compensation commission's decision is not binding on DC agency. THERE'S NO LAW
Plurality (Stevens +3): VA and DC have different WC acts, so VA judgment on VA law need not (under FF&CC) be binding on DC court applying DC law. Treat DC award as a supplemental recovery.
HARRISON: Stevens should have used insurance rationale. Treat WC like an insurance policy: you can recover in excess of it (supplemental recovery), but you can't get double recovery.
Concurrence (White +2): Follows McCartin (which gets overruled by the other blocs). VA did not intend law to apply extraterritorially, so its WC decision need not under FF&CC be binding on DC.
Dissent: (Rehnquist+1/HARRISON): Apply Magnolia. If VA would hold that its judgment has preclusive effect on any future WC proceeding in VA, the VA award must have the same effect on DC WC proceedings per the FF&CC.
HARRISON: Makes sense if you think of WC like tort law (tort judgments carry preclusion)
Inconsistent Judgments: last in time wins (R2D (p. 558))
Challenges to the Jurisdiction of the First Court RULE: Presumption that a second court may not inquire into jurisdiction if the issue of jurisdiction was litigated (Durfee). May be rebutted by showing a reason for attack specific to this case (e.g., land taboo), e.g., by Congress passing a statute related to jurisdiction with purpose of allowing collateral attack (Kalb v. Feuerstein: Congress statutorily took away state court jurisdiction over bankruptcy; federal court could review state court's finding that it had jurisdiction)
NOTE: jurisdictional challenge may also be issue precluded if the facts underlying the jurisdictional determination had been litigated for something other than jurisdiction (e.g., accretion/avulsion in Durfee or domicile)
But see Matsushita: Court can have jurisdiction to assess strength of a claim (e.g. to evaluate fairness of a release agreement) that it does not have jurisdiction to adjudicate.
See R2D (p. 557): balancing test of factors to overcome presumption
Court always has jurisdiction to determine whether it has jurisdiction (thus underlying facts can be preclusive even if they didn't have jurisdiction) Durfee v. Duke (1963 p. 551) Preclusion if Fairly Litigated
FACTS: Accretion question litigated in NE court, which determines property is in NE and NE court has jurisdiction. Loser goes to MO court and asks it to review accretion question and hold that land is in MO.
Accretion: when boundary of river moves slowly, the border changes with it
Avulsion: when boundary of river moves suddenly, the border is the original location of the river
NOTE: jurisdiction depends on finding of fact as to accretion vs. avulsion.
RULE: If jurisdictional question has been fully and fairly litigated, there is a presumption of preclusion for (1) question of jurisdiction, and (2)
findings underlying that determination. Collateral attack OK only if jurisdiction was not previously litigated. Real Estate
RULE: "Land Taboo" - only courts in the state in which land is located (situs state) may make determinations regarding title that may bring about changes regarding that title (Clarke). o Other jurisdictions may make other determinations regarding rights to the land, but cannot impose a remedy that causes the land to transfer. (Fall) o See also Local Action Rule (minority) requiring suits for injury to land proceed in situs state
POLICY: Currie/HARRISON: conveyance and real estate law is so idiosyncratic that the situs state should decide for uniformity and accuracy (e.g., patent law and CAFC)
Clarke v. Clarke (1900 p. 559): No Equitable Conversion o FACTS: Woman in SC dies intestate and leaves land in CT. Intestacy laws of SC and CT would leave land to different people. SC court says "equitable conversion" and changes property to chattel not real estate.
NOTE: Personal property would be governed by law of state of domicile, SC. o RULE: Land Taboo. CT (situs) law applies because title to land is in question.
Fall v. Eastin (1909 p. 561) Injunctions by non situs o FACTS: During divorce of WA couple, WA court enjoins husband (decree) to convey real estate in NE to wife. Husband left WA before signing conveyance to wife, and conveyed to his brother. WA commissioner conveys to Wife. Wife sues brother for title in NE and loses. o RULE (McKenna): equity acts on the person, and cannot affect the property, thus neither WA decree nor commissioner's deed can bind NE court to transfer property.
NE court would have been obligated to enforce the conveyance had the WA court successfully enjoined him to sign the conveyance while he was in WA.
NE allowed to enforce decree if it wants to (by discarding the land taboo and recognizing WA ability to order conveyance of NE land) o CONCUR (Holmes): Contract solution - WA decree was enforceable in NE (like a contract), NE court has obligation to enforce decree, i.e., make him sign the conveyance (like specific performance remedy to contract).
Basically a dissent, but he agrees with judgment because NE court was allowed to uphold transfer by finding brother innocent purchaser. o Currie/HARRISON Solution:
(1) Litigate proceedings in WA and obtain right to land (e.g., declaratory judgment/merits decision).
(2) Seek a decree in NE (situs state) declaring the rights of the parties resulting from the WA proceeding (1738 means NE must respect preclusive effects of WA judgment) 6
(3) Seek a remedy in NE (situs) pursuant to decree from (2): injunction for title to land (remedy).
NE cannot reject WA judgment on rights, but can refuse to issue a remedy if its law differs.
Local Action Rule: when suing for injury to land, you must sue in jurisdiction where land is located, and you must get personal jurisdiction over D there (many states have discarded this rule) (e.g., can't sue Jefferson in DE for damage in LA caused by broken Dyke) Equity, Ongoing Decrees, and Enforcement of Judgments
Cf. Thomas v. Washington
Modern Rule: Family Support o Modifiable Decrees: Uniform Interstate Family Support Act (UIFSA p. 575):
If at least one party still domiciled in issuing jurisdiction: issuing state has continuing exclusive jurisdiction to modify a decree so
If no party still domiciled in issuing jurisdiction: it may be modified by other states, but not to increase obligations. At this point, the issuing state can only exercise jurisdiction over modification upon consent of all parties. o Final Decrees: (Yarborough) FF&C does not allow a state to question a foreign decree if the foreign state would treat it as final. o Old Rule: (Worthlee) Support decrees that are open can only be modified by state that created, but can make a new one based on it (and foreign state might follow based on voluntary comity)
See Thomas for discussion of (non)preclusive effect of state agency awards (e.g., workers' comp) on supplemental awards in other jurisdictions
See Baker for complications in enforcing judgments/injunctions against other parties
Worthlee v. Worthlee (Cal. 1955 p. 570) - Comity o FACTS: Support decree in NJ of weekly amount open for modification. CA wants to modify based on changed circumstances.
NOTE: Support decrees are nonfinal in NJ, and Full Faith & Credit statute does not apply to non-final decrees o RULE: Support decrees that are open can only be modified by state that created, but CA may make a new decree based on NJ decree
Voluntary Comity: new state starts with old decree (NJ), although not required to, and then makes new decree (CA) based on it, AND most states (NJ) would respect new decree (CA) based on comity
Baker v. General Motors (1998 p. 578) Recognition vs. Enforcement of Judgments o FACTS: P v. D in MO. D reaches settlement K in MI with non-party employee entered as consent decree enjoining him extraterritorially from testifying against D in all cases (including here) unless D consented. Stipulated that employee would not be held liable though if subpoenaed. P subpoenas employee . D moves to exclude testimony based on injunction.
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