Conflict of Laws Course Syllabus, Spring 2017 (Prof. Symeonides) Willamette University College of Law

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1 Conflict of Laws Course Syllabus, Spring 2017 (Prof. Symeonides) Willamette University College of Law I. COURSE OBJECTIVES This course is intended to teach you how to detect and handle legal disputes that implicate the laws of more than one state or country (multistate cases) and which, for this reason, present conflicts of laws. We will spend much of our time on intra-u.s. or interstate conflicts, because they are the most frequent and you will encounter them daily in your future practice. However, we will also cover international conflicts between U.S. state or federal laws and foreign-country laws. In other courses, you have learned the law of judicial jurisdiction, namely which state s courts may decide a multistate case. In this course, you will learn about legislative or prescriptive jurisdiction, namely which state s or country s law will govern the merits of a multistate case, and how a court or other decision-maker selects that law (choice of law). You will also learn about the conditions and requirements for recognizing and enforcing a judgment in another state or country (judgment recognition). Our work materials consist primarily of appellate judgments. This means that we will focus primarily on the work of the courts. You will learn how to prepare for court as an attorney for either side, or (why not) as a judge. However, you will also learn how to be a good office lawyer, e.g., how to avoid litigation or make it more predictable. For example, when you draft a contract for a client, should you include or agree to a choice-of-forum clause assigning (exclusive or concurrent) jurisdiction to a specified court? Should you also include or agree to a choice-of-law clause designating in advance the governing law? 1. Required Course Materials (a) S. SYMEONIDES & W. PERDUE, CONFLICT OF LAWS: AMERICAN, COMPARATIVE, INTERNATIONAL (3rd edition, 2012) (Casebook) (b) OREGON STATUTORY SUPPLEMENT (to be provided) containing all choice-of-law provisions in Oregon statutes. 2. Strongly Recommended Materials Symeonides, Oregon's Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44 WILLAMETTE LAW REVIEW (2007). Symeonides, Oregon's New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 OREGON LAW REVIEW (2009), available at SSRN: papers.cfm?abstract_id= Suggested Materials If you read your assignments, including especially the notes and questions, you should not need to do any additional reading. But if you do, and if you would like to read any of my works, here is a partial list. Page 1 of 9

2 (1) S. SYMEONIDES, PRIVATE INTERNATIONAL LAW: U.S.A. (Wolters Kluwer 2015). This is a concise book, less than 500 pages, covering the whole course. You have free electronic access to this book through the Library s website at com.ezproxy.app.willamette.edu/toc.php?area=looseleafs&mode=bypub&level=4& values=looseleafs~~iel+private+international+law click at United States of America. (2) S. SYMEONIDES, OXFORD COMMENTARIES ON AMERICAN LAW: CHOICE OF LAW (Oxford U.P. 2016) (800 pages, dealing only with choice of law). (3) P. HAY, P. BORCHERS & S. SYMEONIDES, CONFLICT OF LAWS (Thomson-West 5 th ed. 2010). This is a standard hornbook, more than a thousand pages long. (4) S. SYMEONIDES, THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FUTURE, (The Hague Academy of International Law Monographs, Martinus Nijhoff, 2006). This is a 500-page monograph on tort and contract conflicts and choice-of-law methodology. You may also find several of my articles, including my annual surveys of American choice-oflaw cases, posted on SSRN at _id= You don t have to read any of them, but I don t want you to think that I am hiding them either. 4. Examination: There will be a three-hour, in-class, flex exam. You will be allowed to have with you an unannotated copy of the Statutory Supplement. You will have the opportunity to practice on an old exam before the end of the semester. 5. Assignments for first day of classes: Class # 1 (see below). Page 2 of 9

3 II. CLASS SCHEDULE Casebook pages Chapter 1. Introduction I. ABOUT THE SUBJECT... 1 II. A BRIEF HISTORY OF CHOICE-OF-LAW DOCTRINE PART I: CHOICE OF LAW Chapter 2. The Traditional Approach to the Choice-of-Law Problem I. INTRODUCTION II. THE TRADITIONAL AMERICAN APPROACH TO TORT AND CONTRACT CONFLICTS A. Torts Alabama Great Southern RR. Co. v. Carroll Notes and Questions Territoriality, Interstate Boundaries, and Cross-Border Torts The Reasons for and Virtues of the Lex Loci Delicti Rule Conflicts Justice versus Substantive Justice B. Contracts Milliken v. Pratt Linn v. Employers Reinsurance Corp Notes and Questions III. THE TRADITIONAL APPROACH TO CONFLICTS IN OTHER AREAS IV. DOMICILE V. THE RESTATEMENT S FOLLOWING VI. THE STRUCTURE, OPERATION, AND ESCAPE MECHANISMS OF THE TRADITIONAL APPROACH A. Introduction B. Characterization Alabama Great Southern RR. Co. v. Carroll Levy v. Daniels' U-Drive Auto Renting Co Notes and Questions Haumschild v. Continental Cas. Co Folk v. York-Shipley, Inc., Notes and Questions C. Substance vs. Procedure Grant v. McAuliffe Kilberg v. Northeast Airlines, Inc Notes and Questions Vest v. St. Albans Psychiatric Hospital, Inc Notes and Questions A Note on Evidence D. The Application of the Designated Law Renvoi Estate of Wright Notes and Questions American Motorists Ins. Co. v. ARTRA Group, Inc Notes and Questions Braxton v. Anco Electric, Inc Notes and Questions The Ordre Public Reservation Loucks v. Standard Oil Co. of New York Kilberg v. Northeast Airlines, Inc Owen v. Owen Page 3 of 9 Class 1 Class 2 Class 3 Class 4

4 Notes and Questions The Penal-Law Exception Loucks v. Standard Oil Co. Of New York Notes and Questions The Foreign Tax Exception Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc Notes and Questions VII. JUDICIAL NOTICE AND PROOF OF FOREIGN LAW Geller v. McCown Walton v. Arabian American Oil Co Notes and Questions Chapter 3. Contemporary Approaches to the Choice-of-Law Problem I. INTRODUCTION II. THE SCHOLASTIC REVOLUTION : THE EARLY PROTAGONISTS Walter W. Cook David F. Cavers Brainerd Currie and Interest Analysis III. THE JUDICIAL REVOLUTION: THE BEGINNINGS A. Introduction B. The Center of Gravity Approach Auten v. Auten Haag v. Barnes Notes and Questions IV. THE REVOLUTION TAKES OFF A. Introduction Basic Concepts in Currie s Interest Analysis B. False Conflicts Common-Domicile Intrastate Torts Babcock v. Jackson Notes and Questions Rong Yao Zhou v. Jennifer Mall Restaurant, Inc Notes and Questions Note and Questions on Interest Analysis The First Synthesis: The Restatement (Second) O Connor v. O Connor Notes and Questions Bryant v. Silverman Notes and Questions Milkovich v. Saari Notes and Questions Result Selectivism in American Approaches Not Only in America : Result-Selectivism in Other Countries An Interim Empirical Report on the Judicial Revolution Recap: Common-Domicile Intra-State Torts Cases Analogous to Common-Domicile Cases Statutory Supplement: Read ORS to , especially C. Direct or True Conflicts Contracts Lilienthal v. Kaufman Notes and Questions Statutory Supplement: Read ORS to , especially Class 5 Class 6 Class 7 Page 4 of 9

5 Contract Conflicts under the Restatement (Second) Currie s Second Thoughts: Restraint and Moderation and Apparent Conflicts People v. One 1953 Ford Victoria Bernkrant v. Fowler Notes and Questions Unilateral Localizing Statutes Rules of Immediate Application or Mandatory Rules Torts a. Direct Conflicts Arising from Split-Domicile Intrastate Torts Foster v. Leggett Notes and Questions Cipolla v. Shaposka Notes and Questions Eger v. Du Pont DeNemours Co Notes and Questions Biscoe v. Arlington County Notes and Questions b. Recap: Direct Conflicts Arising from Split-Domicile Intra-State Torts Statutory Supplement: Read again ORS to , especially D. Inverse Conflicts Inverse Conflicts Arising from Split-Domicile Intrastate Torts Erwin v. Thomas Notes and Questions Kaiser-Georgetown Comm. Health Plan v. Stutsman Notes and Questions Neumeier v. Kuehner A Note on the Neumeier Rules Recap: Inverse Conflicts from Split-Domicile Intrastate Torts Statutory Supplement: Read again ORS to , especially E. Split-Domicile Cross-Border Torts Bernhard v. Harrah s Club Notes and Questions Kearney v. Salomon Smith Barney, Inc Notes and Questions Cross-Border Electronic Communication and Defamation Recap: Split-Domicile Cross-Border Torts Statutory Supplement: Read again ORS to , especially F. Conduct-Regulation Conflicts Padula v. Lilarn Properties Corp Notes and Questions The Distinction between Conduct-Regulating and Loss-Distributing Rules Gaither v. Myers Notes and Questions Recap: Conduct-Regulation Conflicts Statutory Supplement: Read again ORS to , especially G. Dépeçage Simon v. United States Notes and Questions A Note on Dépeçage Class 8 Class 9 Class 10 Class 11 Page 5 of 9

6 V. THE REVOLUTION OF LATE: ANOTHER LOOK AT THE EXPERIENCE OF NEW YORK, NEW JERSEY, AND OREGON Schultz v. Boy Scouts of America Notes and Questions P.V. ex rel. T.V. v. Camp Jaycee Notes and Questions Cooney v. Osgood Machinery, Inc Notes and Questions The Oregon Codification for Tort Conflicts Statutory Supplement: Read again ORS to VI. CONCLUDING THOUGHTS ON TERRITORIALITY AND PERSONALITY VII. THE METHODOLOGICAL LANDSCAPE Class 12 REVIEW of Chapter 3 Classes Chapter 4. Conflicts Across the Curriculum I. INTRODUCTION II. COMPLEX LITIGATION In re Air Crash Disaster at Sioux City, Iowa Notes and Questions Choice of Law in Class Actions III. PUNITIVE DAMAGES IV. PRODUCTS LIABILITY Gantes v. Kason Corporation Notes and Questions Statutory Supplement: Read again ORS to , especially V. PARTY AUTONOMY IN CONTRACTS DeSantis v. Wackenhut Corporation Notes and Questions The Uniform Commercial Code The Rome I Regulation Party Autonomy in Employment Contracts Nedlloyd Lines B.V. v. Superior Court Notes and Questions Choice-of-Law Clauses, Arbitration Clauses, Class Actions, and Class Arbitration Statutory Supplement: Read again ORS to , especially and ; Read also ORS and , VI. INSURANCE CONFLICTS 478 Gilbert Spruance Co. v. Pennsylvania Mfgs Ass n Ins. Co Notes and Questions Statutory Supplement: Read the excerpted provisions of ORS Titles 19, 36, and 56 VII. STATUTES OF LIMITATION Keeton v. Hustler Magazine, Inc Notes and Questions Statutory Supplement: Read ORS to VIII. PROPERTY Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg Notes and Questions IX. MARITAL PROPERTY Hughes v. Hughes Notes and Questions Class 14 Class 15 Class 16 Class 17 Page 6 of 9

7 Statutory Supplement: Read ORS to X. SUCCESSIONS Guidry v. Hardy Estate of Renard Notes and Questions Statutory Supplement: Read ORS and XI. STATUS Hermanson v. Hermanson Notes and Questions XII. CORPORATIONS McDermott, Inc. v. Lewis Notes and Questions Chapter 5. Constitutional Limits on Choice of Law I. INTRODUCTION II. THE DUE PROCESS CLAUSE -- A FIRST LOOK Home Insurance Co. v. Dick Notes and Questions III. THE FULL FAITH AND CREDIT CLAUSE -- A FIRST LOOK Alaska Packers Assn. v. Industrial Accident Comm n. of California Notes and Questions IV. A BIT OF BOTH -- THE COURT S CURRENT APPROACH Allstate Insurance Co. v. Hague Phillips Petroleum Co. v. Shutts Notes and Questions Sun Oil Co. v. Wortman Notes and Questions V. A STATE S OBLIGATION AND RIGHT TO PROVIDE A FORUM Hughes v. Fetter Notes and Questions Tennessee Coal, Iron & R.R. Co. v. George Notes and Questions Nevada v. Hall [SKIP] Notes and Questions VI. PRIVILEGES AND IMMUNITIES, EQUAL PROTECTION AND THE COMMERCE CLAUSE AS LIMITS ON CHOICE OF LAW Discrimination Undue Burdens on Interstate Commerce PART III: RECOGNITION OF JUDGMENTS Chapter 10. Recognition of Sister State Judgments I. AN OVERVIEW OF RES JUDICATA RULES II. FULL FAITH AND CREDIT TO INTERSTATE JUDGMENTS The Basic Policies Fauntleroy v. Lum Yarborough v. Yarborough Notes and Questions Thomas v. Washington Gas Light Co Notes and Questions Requirements for Recognition Durfee v. Duke Notes and Questions Baker v. General Motors Corp. [SKIP] Page 7 of 9 Class 18 Class 19 Class 20 Class 21 Class 22

8 Notes and Comments [SKIP] Whose Rules of Preclusion Penal and Tax Judgments Inconsistent Judgments III. SPECIAL RECOGNITION PROBLEMS OF FAMILY LAW Recognition of Divorce Judgments Williams v. North Carolina [II] Notes and Questions Recognition of Child Custody and Support Judgment Chapter 12. Recognition of Foreign-Country Judgments I. INTRODUCTION II. THE STARTING POINT Hilton v. Guyot Notes and Questions Reciprocity III. THE BASIC TEXTS A. Our Side: American Texts The Two Uniform Acts The Two Restatements The ALI Draft Statute B. Their Side: Foreign Recognition Rules National Rules Regional and International Instruments IV. JURISDICTION Hilton v. Guyot Nippon Emo-Trans Co., Ltd. v. Emo-Trans, Inc Notes and Questions V. PROCEDURAL FAIRNESS Hilton v. Guyot Cooley v. Weinberger Bank Melli Iran v. Pahlavi Notes and Questions VI. SUBSTANTIVE DEFENSES Bachchan v. India Abroad Publications Inc Notes and Questions Libel Tourism and Foreign Judgments Chapter 7. Choice of Law in the International Arena I. INTRODUCTION II. CONFLICTS BETWEEN FEDERAL LAW AND FOREIGN LAW Prescriptive or Legislative Jurisdiction to Regulate Cases With Foreign Elements International Law Limits Constitutional Limits Statutes Expressly Applicable to Foreign Events or Persons Statutes that are Silent or Ambiguous on Their Territorial Reach Lauritzen v. Larsen Notes and Questions Hartford Fire Ins. Co. v. California Notes and Questions III. Constitutional Limitations on State Action in the International Arena American Insurance Ass n v. Garamendi Notes and Questions Class 23 Class 24 Class 25 Class 26 Page 8 of 9

9 IV. Conflicts between State Law and Foreign Law D Agostino v. Johnson & Johnson, Inc Notes and Questions Page 9 of 9

The Current State and Trajectory of U.S. Conflict of Laws

The Current State and Trajectory of U.S. Conflict of Laws Czech Society for International Law March 28, 2013 Outline Sources of law for conflict of laws Today only choice of law and recognition and enforcement