Final Examination
Question I
Question 1(a) – Susan needs to show that she was John’s wife at the time of his death
and to avoid the unusual intestate succession rules of jurisdiction C.
In
order to show that she was John’s wife at the time of his death, she needs to
establish the validity of her common-law marriage and to show that it was not
polygamous, i.e. that John was not still married to Samantha when he married
Susan. The best way to avoid the
polygamy problem is to show that John’s divorce from Samantha was valid. To do that, she needs to persuade the court
(which court is discussed later in the answer to this question) to recognize
the divorce judgment of foreign country D.
Full faith and credit does not apply to judgments from foreign
countries, but comity does. There is no
indication of any irregularity in the country-D proceeding, and default
judgments are entitled to recognition just like contested judgments. The fact that Samantha had notice of the
divorce proceeding is the most important element of due process and, Susan
would argue – though this is the weakest part of her argument – that all of the
details of American concepts of personal jurisdiction need not be applied to
foreign country judgments. Thus, the fact that Samantha had no contact with
jurisdiction D should not matter.
If
she sues in State A, she has the strongest likelihood of establishing the
validity of her common-law marriage because State A would likely apply its own
policy recognizing common-law marriage. The problem is that there is no
apparent basis for jurisdiction over an estate matter in State A.
She
does not want to sue in State C, which clearly would have jurisdiction over the
real estate because of the likelihood that State C would apply its own
intestate succession laws. So she
probably should sue in State B where she is domiciled, arguing that State B has
implicit jurisdiction over the marital estate of its domiciliaries. If she sues in B, she has to persuade the
courts of B to recognize the common-law marriage. Her full faith and credit argument is weakened by the fact that a
common-law marriage is not a judicial act but only arguably a “public act.” Nevertheless, the usual choice of law rule
for the validity of marriages is to look to the law of the place of the
marriage, which is State A which would validate her marriage. The interests of State B presumably are
pro-marriage, and this should reinforce her full faith and credit argument that
the courts in all
states
should defer to the law of the place of the marriage whether or not it is
evidenced by a judicial decree.
Now,
she needs to avoid application of the intestate succession laws of C. She would argue that there is at least a minority
rule in the United States that all aspects of intestate succession are
determined by the law of the domicile of the decedent – State B -- which would
give the widow all of the property. She
can reinforce this argument by noting that the interests of State C in applying
its rule are limited to circumstances that might actually give operative effect
to the incentive to write a will. Since
State C was not the domicile of John, State C should have little interest to
whether he wrote a will or not. Thus,
the policy of interests of State C in application of its unusual rule are
served only in cases involving decedents who are domiciliaries of that state,
which is not the case here.
The plaintiff needs some choice of law approach that
avoids the traditional rule of lex res sitae.
In advancing these arguments, she must recognize that the traditional
rule was applied more strongly to real property than to personal property. Real property has a fixed location and
enforcement of any judicial order affecting it depends on the legal and
enforcement sources of the sovereign wherein it is located. The practical arguments are thus strongly
for application of the law of that sovereign than with respect to personal
property which is movable from sovereign to sovereign and thus may inherently
implicate the laws of multiple sovereigns.
Despite the magnitude of her challenge in overcoming a traditional rule,
the plaintiff should assert the eclectic approach embraced by the Restatement
(2nd) of Conflict of Laws.
Under
§ 6 of the Restatement (Second) of Conflict of Laws, governmental interests
analysis includes assesment of:
(a) the needs of the interstate and
international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested
states and the relative interests of those states in the determination of the
particular issue,
(d) the protection of justified
expectations,
(e) the basic policies underlying the
particular field of law,
(f) certainty, predictability and
uniformity of result, and
(g) ease in the determination and
application of the law to be applied.
Governmental
interests analysis includes, as part of this analysis the four
factors
enumerated in the Restatement (Second) of Conflict of Laws
§
145:
a)
the place where the injury occurred;
b)
the place where the conduct causing the injury occurred;
c)
the domicile, residence, nationality, place of incorporation and
place
of business of the parties; and
d)
the place where the relationship is centered.
Section 6 interest analysis applies to choice of law
regardless of the nature of the issue.
Section 145, on the other hand, is intended to apply to court
issues. Section 6 thus is applicable to
disputes involving intestate succession to real property, while Section 145 is
applicable only as a guide or by analogy.
The first factor of Section 6 requires that the
courts of State B give careful consideration to the appropriateness of applying
the substantive law of another sovereign. That is of little help to Susan. The second factor allows Susan to argue that the policies of her
domicile and the domicile of her deceased husband should be paramount,
especially those allowing the widowed spouse to take the entirety of an
intestate estate when there are no children.
They, she would argue, are premised on ensuring that the widowed spouse
receive the benefits of contributions she had made during the marriage to the
acquisition of marital property, and to making sure she does not become a
burden on that sovereign’s welfare system.
She would argue that the third factor does not militate, as it might
seem, in favor of the application of the law of State C, because its policies,
encouraging the making of wills, are relevant only to its own domiciliaries and
not to domiciliaries of other states and to the administration of decedents’
estates located in other states, as to which the laws of domicile traditionally
applies.
The fourth factor cuts against her, because of the
traditional nature of the majority rule applying lex res sitae. She can turn the fifth factor in her favor,
arguing that the basic policies
underlying intestate succession law are best served by centralizing and
simplifying the administration of a decedent’s estate. That is best done by applying the law of the
domicile of the decedent rather than possible application of many different
laws from many different states depending on where the property in the estate
is located.
She can argue that the sixth factor and the seventh
also militate in her favor because centralization and application of a single
state’s law to a state administration is predictable and simple.
Question 1(b) – Samantha needs to show that she
was still married to John when he died and to avoid application of State C’s
intestate succession rules. Samantha gets two bites of the apple to show
she was still married to John. First,
and strongest, is the argument that the divorce decree from foreign country D
is invalid because it was unsupported by personal jurisdiction. There is nothing in any of the major cases
on personal jurisdiction that comes close to suggesting that mere notice is
enough without some sort of contacts with the forum state. Samantha never had any contact with foreign
country D, and thus it would violate due process to recognize that divorce
judgment because it was unsupported by personal jurisdiction, which is an
aspect of due process. Accordingly, she
was still married to John when John purported to enter into a common-law
marriage to Susan in State A. Because
State A does not recognize polygamous marriages, even under the law of State A,
the common-law marriage between Susan and John was invalid.
Accordingly,
Samantha is John’s widow and entitled – but to how much?
As
in the analysis in the answer to Question 1 (a) Samantha, like Susan, needs to
avoid the application of State C law, which means she probably should avoid
suing in State C, which is the most logical place from the standpoint of
personal jurisdiction. The courts of
State C definitely have jurisdiction over the property located there. She may have difficulty establishing
jurisdiction over the estate of John if she sues in her own state – presumably
State F. Accordingly, she probably
should sue in State B – the domicile of
John at the time of his death.
In the courts of State B, she will argue, just as Susan argued in the
answer to Question 1 (a), that both the law of the domicile of a decedent
should apply to questions of intestate succession and that interest analysis
does not suggest that the unusual law of State C should be given effect to
persons not domiciled there and they might have written a will.
I
should note that for both Susan and Samantha, the “best rule of law” approach
might be helpful because the rule of State C is so unusual and the usual
interest in providing for the widowed spouse is diluted by giving half the
estate to the state to the situs of the property.
Question 2 (a)
– The best argument for the plaintiffs is to persuade the court to apply the substantive
law of jurisdiction E, but not its mandatory arbitration provisions. The mandatory arbitration provisions are
discussed in the answer to Question 2 (c).
Under Erie, a federal court sitting in
diversity must apply state substantive law.
Under Klaxon, this includes the state choice of law rule. Thus, the federal court must apply the
choice of law rules of State B. I
assume that these choice of law rules are in the mainstream of American law. As
such, they would point to the substantive law of State B under the tradition
rule of lex loci delicti (the law of the place of the wrong) which clearly is
State E. That is where the accident
occurred. Thus, under traditional
choice of law principles, the federal court would be obligated to award punitive
and treble damages. Also, under the
most significant contacts test, State E’s damages rule should apply as well
although there were contacts (domicile) with State B, the more significant
contacts – the operation of the motor vehicle, the drunk driving, and the
accident -- all occurred in State E.
Also, under the interest analysis approach, State E substantive law
should apply. State E has an interest
in deterring drunk driving on its roads, and seeing guests from other states
driving on its highways fully compensated for their injuries. State B has no interest in regulating drunk
driving on State E’s roads, and its interest in seeing its domiciliaries fully
compensated for their losses is not interfered with by the more complete
compensation provided for under State E’s law.
Since this is a tort case, the factors of
Restatement Section 145 are directly applicable. The first two of these militate in favor of the application of
the law in State C. The third is a
toss-up because of the different domiciles of the parties. The fourth factor really does not come into
play because the relationship between plaintiff and defendant is not really
centered in any one state.
Question 2 (b)
–
The plaintiffs may best be served by arbitrating in
State E, while the defendant may best be served by litigating in some other
state because of the likelihood that forums prefer their own substantive law.
Under the interest analysis framework of
Restatement, set forth in the answer to Question 2, the defendant can argue
that the policies of the forum are best served by applying local law, which
strikes the appropriate balance between plaintiff and defendant interests
rather than applying the law of a foreign forum which embodies an idiosyncratic
approach that is too pro-plaintiff. He
also can argue that simplicity, predictability of result, and protection of
expectations are better served by applying the more traditional damages rule
rather the special rule of State E. He
can expect to be confronted by the counter arguments that the second factor
strongly militates in favor of application of State E law because the accident
occurred there and his misconduct occurred there. Moreover, the traditional rule of the law of the place of the
wrong more completely serves the expectation factor and the simplicity factor.
The defendant drunk driver needs to avoid the
application of State E’s substantive law.
One way to do that is to
argue that the entire
package of the State E
wrongful death statute, including its mandatory
arbitration provisions, should be applied and therefore that the lawsuit in
court in State B must be dismissed.
That possibility is discussed more fully in the answer to Question 2
(c). Because there is a possibility
that the arbitration provision could be severed from the substantive provisions
of State E’s law, as discussed in the
answer to Question 2 (c), the defendant also must have arguments as to why
State B substantive law, eliminating federal damages, must be applied. Preliminarily, it would note that under
Allstate and Sufa, State B is entitled to apply its own law because it does
have an interest in some contacts in State B.
One of the plaintiffs and the decedent were domiciliaries of State B.
Next, the defendant should argue that lex loci
delecti is an obsolete and unduly rigid rule, and therefore should not be
accepted as the choice of law rule of State B.
In terms of contacts, the defendant should argue that State B has more
contacts than State E. The contacts of
State E were purely fortuitous; it is not even clear that the decedent knew
that he was in State E. There is no
reason that the fortuity of his presence in State E should result in a windfall
for the plaintiffs, who had no contacts with State E at all. The defendant would argue that the damage
rules requires striking a balance between the interest of the plaintiff and
interest of defendants, and that State B has done this, and State B’s
substantive laws reflecting that balance should be applied. Moreover, the State E rule is unusual and
hardly can be characterized as the “best rule.” State B’s rule is more common and therefore is the better
rule.
A weaker argument for the defendant is that damages
are procedural and therefore the law of
the forum should be
applied. Of course, if the choice of
law rule of State E is such that it would point back to State B, renvoi be used
in the defendant’s favor.
Question 2 (c) – Whether arbitration or judicial resolution is used to resolve a
dispute as a procedural issue, and therefore the law of the forum should be
applied, which would result in the case not being arbitrated. On the other hand, what is procedural and
what is substantive depends on how closely linked the provision in question is
to the clearly substantive provisions of law.
Because the arbitration provision is contained in the wrongful death
statute of State E, it is tightly bound up and might seem to be
substantive. Probably the strongest
argument against applying arbitration derives from federal law. Just as in the
case, in which federal 7th Amendment and other procedural interests militated
against outright application of the New York provision relating to appellate
re-examination of facts decided by juries, the federal interests mandate access
to federal court. Application of State
E’s mandatory arbitration provision would conflict with this and must give
way.
Question 1 – Collins must argue that the English judgment is not entitled to
recognition under the doctrine of comity.
(Full faith and credit does not attach to this English judgment because
it comes from a foreign country.)
Collins best argument is that the English court lacks personal
jurisdiction over him. Thus, to
recognize the English judgment would violate the due process clause of the
United States Constitution, interpreted in the personal jurisdiction context in
international Shoe. Collins would argue
that none of the traditional bases for
personal jurisdiction existed to support the English because he
was not domiciled there, had never been there, and conducted no business
activities there. Cyberplex will
counter by arguing that Collins reached out to England by contacting its web
server and purchasing stock in an English company. He thereby purposefully availed himself of English law and it is
thus fair to subject him to the jurisdiction of the English court. Cyberplex probably has the better side of
this argument, so Collins faces an uphill battle to avoid enforcement of the
English judgment
The
Brussels convention has nothing to do with this part of the problem because it
only governs jurisdiction and judgment recognition among signatories to the
convention, and the United States is not a signatory. Article 4 of the EEC Jurisdiction and Judgments Convention
applies the law of the forum to determine jurisdiction over a defendant not
domiciled in a Contracting State. Thus
English law, rather than the Convention applies to the suit by Cyberplex
against Collins.
If
Collins entered into a valid contract with Cyberplex or with the issuer of the
stock and the contract contained a forum selection clause consenting to
jurisdiction in the English courts, Collins is sunk. But the question does not suggest the existence of any such contract.
The
question does not say what substantive law was applied by the English court. If
English law rather than Illinois law
were applied, Collins also might have some prescriptive jurisdiction arguments,
but they probably would be weak because so much of
the
stock purchase transactions and the issuer were located in England, thus giving
England a legitimate interest in applying its own law.
Question 2 – The English courts can be expected to apply the same comity doctrines
explored in the answer to Question 1.
As in Question 1, the Illinois judgment is not entitled to recognition
if it was unsupported by personal jurisdiction. Collens will argue that the Illinois courts had personal
jurisdiction over Cyberplex because it engaged in business in Illinois by
making its web site available to Illinois residents for them to purchase
stock. The problem with this argument
is that it is a stream of commerce argument rejected in Worldwide Volkswagen
and not accepted by the majority of the Supreme Court in Asahi. If facts exist that somehow suggests targeting
of Illinois by Cyberplex, then Collens has a much stronger argument that
Cyberplex purposefully availed itself of Illinois law and therefore that
personal jurisdiction is appropriate.
The rules that the comity doctrine would suggest be applied for
determining personal jurisdiction are those governing adjudicative jurisdiction
in international law, which are basically similar to those adopted by
International Shoe and its progeny.
Another basis for denying enforcement of the Illinois judgment in England
would be that the English judgment was valid and preceded the Illinois
judgment, and therefore that raised res judicata bars in the Illinois
Court. That would depend on the
substantive claims asserted in England and Illinois, and we have no information
about the nature of those claims.
Because
we have no information about the nature of the claim asserted in Illinois,
there is no reason to suppose that there is any prescriptive jurisdiction
argument available for Cyberplex. In
any event, this appears to involve a securities dispute, and U.S. cases are abundant in their authority
for the proposition that U.S. securities laws applies even to the extra
territorial aspects of a transaction involving a U.S. stock purchaser.
Question 3 – It would make some difference, but not
much. Full faith and credit under the
United States Constitution would apply rather than comity to the recognition of
the judgments. On the other hand,
judgments unsupported by personal jurisdictions are not really judgments, and therefore
are not entitled to full faith and credit.
The same arguments on both sides of the personal jurisdiction question
involving both the Illinois and Alabama judgments reviewed in the answers to Questions I and II would
apply in analyzing Questions III.