PERSONAL JURISDICTION

1. Does the state have a long-arm statute that permits personal jurisdiction (PJ) up to the
limits of the Constitution?
a. If not, youll have to work within the limits placed on PJ by the states long-arm statute.
2. Was the defendant personally served in the jurisdiction?
a. If so, PJ under Burnham.
3. Is the defendant(s) absent from the jurisdiction?
a. If so, is there general jurisdiction over the defendant(s)?
i. Does the Defendant have continuous and systematic contacts with the
jurisdiction? (Helicopteros)
1. Mere purchases, even if occurring at regular intervals, are not enough to
warrant a states assertion of jurisdictin over a nonresident in a claim
unrelated to those transactions. (Helicopteros)
b. If so, is there specific jurisdiction over the defendant(s)?
i. Does the Defendant have certain minimum contacts with the jurisdiction such
that maintenance of the suit would not offend traditional notions of fair play and
substantial justice? (Intl Shoe)
ii. Has the Defendant purposefully directed activity toward the jurisdiction such that
he could reasonably anticipate being haled intou court there? (World-Wide
Volkswagon; Asahi)
1. Purpose of limitations on PJ
a. Protect Defendants against unfair surprise.
b. Protect Defendants against inconvenient and expensive litigation
that has no substantial connection to the activity.
c. Protect Defendants against application of unfavorable
substantive law rules.
2. Stream-of-commerce (+) Putting a product into the stream of
commerce with the knowledge that it would enter the jurisdiction was
sufficient for PJ in WWVolkswagon; however, the plurality in Asahi
thought there needed to be more, such as advertising in the forum,
establishing market channels, etc.
a. As Asahi hinted, an intermediary distributor may be subject to PJ
in place of the foreign manufacturer.
3. A consumer who unilaterally brings a product into the jurisdiction and is
then injured there by it does not subject the manufacturer/distributor to
PJ. (WWVolkswagon)
4. Contract In Burger King, a COL clause in the franchise agreement as
well as the 20-year length of the agreement was enough for PJ in Florida
over the Michigan franchisee.
a. COL clause is merely evidence; it is not dispositive of PJ.
b. But an individual contract with an out-of-state party is not
enough, by itself, to establish sufficient contacts with the
partys forum.
iii. Does the dispute arise out of those contacts? (Burger King)
1. If not, no PJ.
4. Is Plaintiff are asserting quasi in rem jurisdiction?
a. Schaffer makes quasi in rem jurisdiction subject to a minimum contacts analysis.
5. Is Plaintiff asserting in rem jurisdiction?
a. Unclear whether Schaffer subject in rem jurisdiction to a minimum contacts analysis.
 CONSTITUTIONAL LIMITATIONS ON CHOICE-OF-LAW
1. Every state is prima facie entitled under the Full Faith and Credit Clause to apply its own
statutes in its own courts. (Alaska Packers; Pacific Employers) They are not, however, required
to apply their own statutes.
2. A forums application of its own law is constitutional when
a. there is sufficient contacts or aggregation of contacts with the parties and with the
occurrence or transaction giving rise to the litigation, creating state interests such
that the choice of forum law is neither arbitrary or unfair. (Allstate Ins. Co. v. Hague)
3. In Allstate, these contacts were sufficient to satisfy the test of constitutionality:
a. The deceased was employed in and commutted to the forum.
i. Domicile or residence in a forum thus virtually guarantees constitutionality of
that forums application of its own law.
b. Allstate did business in the forum.
i. But Allstate did business in every forum.
c. Deceaseds wife (his executor) moved to the forum after accrual of the cause of action.
i. This factor encourages forum shopping.
4. Argue against constitutionality of forum law on the basis that the contacts were not related to the
public policy of the forum. (Powell dissent in Allstateemployment in forum unrelated to
automobile insurance)
5. Argue that Stevens analysis in Allstate should apply instead (contacts are irrelevant).
a. Constitutional questions is actually two separate questions.
i. FFC Would application of forum law frustrate another states policy or ability
to regulate behavior in that state?
ii. Due Process Would application of forum law frustrate justifiable expectations
of the parties?
1. In insurance context, its hard to argue that the insurance company had a
justifiable expectation that its insureds wouldnt travel and be injured in
forums other than the forum of contracting.
6. Argue that application of forum law would frustrate parties expectations. Although the Allstate
majority doesnt consider parties expectations, Phillips Petroleum v. Shutts (U.S.) appears to
provide some protection for those interests.
7. Argue that the forum misapplied the law of another state.
a. However, under Sunoil v. Wortman, if a losing party wants constitutional review of a
forums interpretation of another states laws, they must show that the forum ignored
clearly applicable precedent of the other state that would have resolved the issue
differently.
8. Obligation to provide a forum
a. Under the FFCC, courts today are not free to refuse to enforce a foreign right unless to
enfore it would violate a fundamental policy of justice, good morals, or a deep-rooted
tradition of the forum. (Hughes v. Fetter)
b. In Hughes, WI statute barred wrongful death actions where the death occurred in a
different state. But because it allowed wrongful death actions when the death occurred in
WI, it did not have a strong public policy against such actions per se. Rather, it
discriminated, which is impermissable under the FFC.
c. Door-Closing Statutes vs. Forum Applying Its Own Law
i. Hughes court said that no violation of FFC if WI just applied its own wrongful
death statute (there were sufficient contacts under Allstate).
 ii. Discriminatory statutes, which allow enforcement when the right arises in-state
but not when it arises out-of-state, are different.
d. Exception: A forum is permitted to close its doors for reasons of judicial efficiency (e.g.,
forum non conveniens; and generally applicable, nondiscriminatory SOLs).
9. The FFCC prohibits states from enacting statutes that limit jurisdiction over the right it creates to
that state. Such statutes frustrate the FFCCs goal of creating a unified country. (Tennessee Coal
v. George)

CHOICE-OF-LAW RULES

If law of a foreign nation is involved, did the party relying on it plead it as

required by the jurisdiction? Edwards v. Erie Coach Lines

Traditional Approach - & - Restatement (1)

1. What is the nature of action?
a. Tort Place of injury (Ala. Great Southern)
b. Contract (validity) Place of contract (Miliken v. Pratt)
c. Contract (performance) Place of performance
d. Family relations (e.g., spousal immunity) Domicile (Haumschild)
e. Disposition of Real Property Situs of Real Property (Barrys Estate)
f. Disposition of Movable/Personal Property Domicile (White v. Tenant)

2. While staying within the action, is there a way to avoid application of disfavored law?
a. If a tort action,
i. Argue that the last place of wrong necessary to make the actor liable was in a
different state.
ii. Argue that every element of the cause of actionnegligence and injurymust
occur in one state, and either the negligence or injury occurred in a different
state.
b. If a contract validity action,
i. Argue about the point, and place, at which the contract was madeoffer and
acceptance.
c. If contract performance action,
i. Argue about the place where performance was made.
d. If action for disposition of movable/personal property,
i. Argue for mechanical applicatin of domicile rule (if helpful to your client).
1. Actual residence, and
2. Intention of remaining.
ii. Argue that decedent was more familiar with one states laws and so likely
intended for that states laws to apply.
3. Is there a way to characterize the action so as to avoid application of disfavored law?
a. Tort vs. Contract
i. Argue that the purpose of the statute was to regulate contracts, not torts. (Daniels
U-Drive)
ii. If a states liability statute is in play, and issue involves an employee and
employer, argue that the statute was embodied in the employment contract made
in that state, and travelled with the employee. (rejected in Ala. Great Southern)
b. Tort vs. Family Law
 i. Argue that the action is really about family relations, not tort. (e.g., interspousal
immunity in Haumschild)
ii. Alternatively, argue that its in tort, in that its about preventing fraudulent
claims.
c. Substantive vs. Procedural
i. First, ask whether there is a borrowing statute that moots any consideration of
substantive vs. procedural.
ii. Generally, if conflicting laws can be categorized as procedural rather than
substantive, within the context of the action, then the forum can apply its own
law. (Grant v. McAuliffe)
1. A law is generally procedural if it relates to efficiency or accuracy in
administering justice or in the functioning of the courts. (e.g., filing
requirements, service of process, etc.)
2. A law is generally substantive if it creates a right or defense, or if it
protects a certain class of parties.
iii. Burden of Proof
1. Procedural Relates to evidence, placing the burden on the party who
has access to it.
2. Substantive Reflects a policy decision to protect one class of parties
against claims from another class.
iv. Statutes of Limitation (Bournias v. Atlantic Maritime Co.)
1. Default is that theyre procedural.
a. Procedural because they relate to evidence, which grows more
stale as time goes on, and related concerns of accuracy in the
administration of justice.
2. They can be substantive (a policy of repose), however, if the SOL at
issue is aimed specifically at the particular right(s) plaintiff seeks to
enforce, so that it can be assumed that the legislature meant to limit that
right(s).
a. If the SOL applies to many substantive rights, its probably not
substantive itself.
b. The SOL almost certainly has to be in the same act or statutory
section to qualify as substantive. Thats necessary but not
sufficient, however (as it wasnt in Bournias).
d. Penal Law
i. Argue that the foreign law is penal and that states do not enforce the penal laws
of a foreign jurisdiction.
ii. Alternatively, argue that under Loucks v. Standard Oil of NY, penal means
criminal. A civil claim that has elements of culpability and punishment (wrongful
death) still does not qualify for the penal exception.
4. Could renvoi apply to avoid application of disfavored law?
a. A forum court accepts renvoi when it looks to the substantive law of a foreign state and
follows the foreign states COL rules.
b. A forum court rejects renvoi when it looks to the substantive law of a foreign state and
refuses to follow the foreign states COL rules.
c. The policy underlying renvoi is uniformity of result: State A wishes to arrive at the same
answer as would State B.
i. Argue against application of renvoi by arguing that uniformity of result is not of
paramount (or overwhelming) concern in a particular case.
d. Problems with renvoi:
 i. State A accepts renvoi, looking at the COL rules of State B. State Bs COL rules
send you back to State A. If State B accepts renvoi as well, then you wind up in a
loop.
5. Could there be a public-policy argument for avoiding application of disfavored law?
a. The Full Faith and Credit Clause places limits on a states ability to close its doors to
plaintiffs seeking to enforce a foreign right. (CITE)
b. Construe the public-policy exception narrowly, as did Cardozo in Loucks v. Standard Oil
of NY, in which both states permitted recovery for wrongful death, but one placed
limitations on recovery. No public-policy conflict was found.
c. Construe the public-policy exception broadly, as was done in Mertz v. Mertz (party
seekign to enforce a foreign right can only avail themselves of local remedies).
d. Bradford Electric Light (U.S.) & Holzer The public-policy exception can be used to
close doors to a foreign claim (because Plaintiff could bring it elsewhere) but not to strike
a Defendants defense under foreign law (because the Defendant would have
irremediable liability).

Modern Approaches
1. Contractual COL Provisions
a. Under most circumstances, parties can include a provision in their Ks specifying which
law will apply to disputes arising out of the Ks.
b. There are limitations, however:
i. Q1 Does the dispute arise out of the K?
1. If not, the COL provision is simply inapplicable.
ii. Q2 Does the dispute relate to an issue of interpretation (rights and duties) or
validity of the K?
1. COL provisions relating to interpretation given effect under R(2) below.
2. COL provisions relating to validity of the K give effect only if
a. The COL is bona fide, and
b. the state chosen has some relation to the agreement, usually
either the place of making or the place of performance. (Cunard
White Star)
iii. Q3 Does the dispute concern a default rule or a mandatory rule?
1. A default rule is one that the parties could resolve by an explicit
provision in the K (e.g., no termination without cause). (R(2) 187(1))
a. If a default rule, the COL provision will be effective under R(2)
187(1).
2. A mandatory rule is on that the parties could not resolve by an explicit
provision in the K (e.g., SOL, estoppel, no price above FMV). (R(2)
187(2))
a. If a mandatory rule, argue, first, that the COL rule does not
apply. BUT R(2) 187(2) says that it will still apply so long as Q4
(and not Q5) is satisfied.
iv. Q4 Is there a substantial relationship between the parties OR the transaction
and the chose state, OR is there another reasonable basis for the parties choice?
(R(2) 137(2)(a))
1. If so, the COL provision is effective unless Q5 is satisfied.
2. Its often difficult to say that there is no reasonable basis for the parties
choice of law.
 v. Q5 Even if Q4 is satisfied, would application of the chosen law be (1) contrary
to a fundamental policy [NOT just nonwaivable] of a state that has (2) a
materially greater interest than the chosen state in the determination of the
particular issue, (3) and that would be the state of the applicable law in the
absence of an effective COL by the parties?
1. If (1)-(3) satisfied, the COL provision is ineffective. (R(2) 187(2)(b))
c. If the COL provision is effective, in absence of a evident contrary intent from the parties,
the COL reference is to the chosen states local law, meaning not its COL rules (NOT
RENVOI). (R(2) 187(3))
d. Argue against application of the COL provision by saying that the K was one of
adhesion, and as such, does not reflect the intentions of the parties. (Justice Franks
dissent in Cunard White Star)
e. IF A CHOICE-OF-FORUM CLAUSE rather than a COL clause, likely it will be upheld
under Carnival Cruise Lines v. Shute.
2. New York
a. (1) Is the action on e in tort and (2) is the law (or rule) at issue loss-allocating OR
conduct-regulating? (Shultz v. Boy Scouts of America)
i. If loss-allocating, the Neumeir Rules apply. (rules limiting damages in wrongful
death actions, vicarious liability rules, immunities from suit)
ii. If conduct-regulating, apply the law of the place of injury. Driving purpose is to
protect the expectations of the parties who presumably conformed their conduct
to the rule. (e.g., rules of the road)
b. Neumeier Rules:
i. Rule #1: If P and D have the same domicile, apply the law of the domicile; or, if
P and D are domiciled in different states, but both would resolve the same.
ii. Rule #2: If P and D have different domiciles, did the conduct that caused the
accident or injury that resulted occur in the state of domicile of one of the
parties?
1. If yes, does the states law favor its domiciliary? If so, apply that states
law.
iii. Rule #3: In all other situations, presumptively apply the law of the place of
injury. [Currie would apply forum law]
1. Other situations include:
a. Both Ps and Ds states protect them and the injury occurred in
one of the domicile states. Cooney. (Sterk says you have a better
argument under Rule #2 )
b. 3 states (P and D domiciled in 2 different states and the tort
occurred in the third state).
c. Tort touches both domicile states (Ds tortious conduct occurred
in his state, Ps injury occurred in her state).
2. The presumption can be rebutted by showing that displacement of the
place-of-injury rule would advance the relevant substantive law purposes
without impairing the smoth working of the multstate system or
producing great uncertainty.
a. Essentially requires an interest analysis, see (4) below. If the
interests of the state that is not the place of injury will be
advanced, and the interests of the state of injury will not be
advanced, then there is a false conflict and you should apply the
law of the interested state.
c. If the action is one in contract, apply the COL provision (subject to R(2) 187) or apply
the R(2) 188 most significant relationship or center of gravity test. (Stolarz)
3. Oregon
a. Curries Interest Analysis:
i. Identify the competing state policies by looking to legislative history or case law.
ii. Determine whether either of these policies are implicated in this case.
1. Most often turns on whether the entity the law is meant to protect is
involved in the case.
iii. Based on the results of (ii), apply law:
1. If both states interest would be advanced by application of their
respective law, there is a true conflict. Under old Currie analysis, apply
the forum states law. (Lilienthal v. Kaufman)
a. If the forum follows the new Currie analysis, however, if there is
a true conflict the the forum should re-examine its law with a
view to a more moderate and restrained interpretation that would
elimante the true conflict. You should look to other possible state
interests (did the state legislature really mean for the law to
apply to this situation?) and to the expectations of the parties.
2. If only one states interests would be advanced by application of its law,
there is a false conflict. Appy the law of the state whose interests would
be advanced.
3. If no states interests would be advanced, apply the forum states law.
(Erwin v. Thomas)
b. Key to Currie interest analysis is characterizing the states policy, which in turn
determines whether its interests will be advanced by application of its law to the case.
4. California
a. Comparative-Impairment Analysis (modified Currie Analysis) (Bernhard v. Harrahs
Club):
i. Identify the competing state policies by looking to legislative history or case law.
ii. Determine whether either of these policies would be implicated in this case.
iii. If there is a true conflict, determine which states interest would be more
impaired if its law was not applied.
1. CA is always looking for reasons to apply its own law.
2. Ask whether one of the states has a statute that would already impose a
similar duty as that imposed by the other states statute.
3. Ask whether parties in that state could have foreseen and planned for the
liability at issue.
a. Civil and criminal liability are different. Huge monetary liability
on a civil claim is different from a small fine for a relatively
minor criminal violation.
4. Ask whether the D has purposefully projected itself into CA by doing
business there. If so, more reasonable to apply CA law.
5. Leflars Better-Law Approach
a. Which law should apply depend on the application of 5 factors. Unlike Currie analysis,
which gives you a series of steps to go through, Leflar does not specify how you should
apply his factors.
b. Factors:
i. Predictability of results Usually important in cases involving consensual
transactions (e.g., contracts), where parties have certain expectations. However,
expectations can still play a role in tort cases, especially when insurance
companies are involved (they set their rates based on their expectations of
liability).
 ii. Maintenance of interstate and international order Usually this means that a
disinterested state shouldnt apply its own law out of respect for other states.
Could also argue about impact on forum shopping if one rule is applied over
another.
iii. Simplification of the judicial task Court dont usually have a problem with
applying other states laws and so dont emphasize this factor.
iv. Advancement of the forums governmental interests Interest at stake is that of
any justice-administering state. Where a forum has a genuine concern with the
facts in a given casea concern discoverable from its strongly felt social or legal
policyits reasonable to expect the forum to act in accordance with that
concern. If the foreign rule is inconsistent with the forums own conception of
fairness and equity, it need not apply it.
v. Better rule of law The rule that makes the most socio-economic sense for the
time when the court speaks. (Jepson) Most states have done away with guest
statutes. (Milcovich)
6. Restatement (2) Most-Significant-Relationship Test
a. R(2) approach was designed to send courts to the law of a particular jurisdiction unless
another state has a more significant relationship.
b. For tort cases, the analysis proceeds like so:
i. 146Creates presumption that the law is that of the place of injury. 175 is
equivalent provision for wrongful death.
ii. 145(1) 146 presumption is rebutted if another state has the most significant
relationship (MSR) to the occurrence and the parties under 6.
iii. 6(1) & 145(2) Factors, and contacts, to help determine if any other state
has a MSR.
c. For contract case, the analysis proceeds like so:
i. 186 If the parties have a COL provision, apply it under 187.
ii. 188(1) If the parties dont have COL provision, apply the law of the state
with the MSR.
iii. 196 If the K was for the provision of services, creates a presumption that the
law of the state in which the contract requires those services be rendered governs.
Presumption is rebuttable under 6.
iv. 6(1) & 188(2) Factors, and contacts, to help determine if any other state
has a MSR.
d. R(2) 6: Choice of Law Principles
i. (1) A court, subject to constitutional restrictions, will follow a statutory directive
of its own state on choice of law.
ii. (2) When there is no such directive, the factors relevant to the choice of the
applicable rules of law include
1. (a) the needs of the interstate and international system
2. (b) the relevant policies of the forum
3. (c) the relevant policies of other interested states and the relative interest
of those states in the determination of the particular issue
4. (d) the protection of justified expectations
5. (e) the basic policies underlying the particular field of law
6. (f) certainty, predictability, and uniformity of result
7. (g) ease in the determination and application of the law to be applied
e. R(2) 145: General Principals in Tort Cases
i. (1) The rights and liabilities of the parties with respect to an issue in tort are
determiend by the local law of the state which, with respect to that issue, has the
 most significant relationship to the occurrence and the parties under the
principles state in 6.
ii. (2) Contacts to be taken into account in applying the principles in 6 to
determine the law applicable to the issue include:
1. (a) the place where the injury occurred
2. (b) the place where the conduct causing the injury occurred
3. (c) the domicile, residence, nationality, place of incorporation and place
of business of the parties, and
4. (d) the palce where the relationship, if any, between the parties is
centered.
a. These contacts are to be evaluated according to their relative
importance with respect to the particular issue.
f. R(2) 186 Applicable Law in Contracts Cases
i. Issues are determiend in accordance with law chosen by parties in accordance
with 187. If no law is chosen, according to 188.
g. R(2) 188: Law Governing Contract Issues in Absence of Effective Choice by
Parties
i. (1) The rights and duties of the parties with respect to an issue in contract are
determined by the local law of the state which, with respect to that issue, has the
most significant relationship to the transaction and the parties under the
principles stated in 6.
ii. (2) In the absence of an effective choice of law by the parties, the contacts to be
taken into account in applying the principles of 6 to determine the law
applicable to an issue include:
1. (a) the place of contracting
2. (b) the place of negotiation of the K
3. (c) the place of performance
4. (d) the domicile, residence, nationality, place of incorporation and place
of business of the parties.
a. These contacts are to be evaluated according to their relative
importance with respect to the particular issue.
iii. (3) If the place of negotiation and performance are in the same state, that states
law will usually apply.

In Federal Courts
1. Which COL rules must a federal court apply when sitting in diversity?
a. Under Klaxon, the COL rules of the state in which it sits.
2. When can a federal court sitting in diversity apply law other than the applicable state law?
a. When presented with the possibility that either state law or federal common law could
apply in an action, a federal court determines the law it must apply under the Erie
Doctrine.
b. First, ask if there is a FRCP directly on point.
i. Whether the FRCP is directly on point depends on how broadly you construe the
Rule.
1. Party arguing for the Rule argues that it is broad enough to cover this
issue.
2. Party arguing against the Rule argues that the issue is beyond the scope
of the federal rule, so were in a different analysis.
 c. If the FRCP is directly on point, apply Hanna v. Plummer (Rules-Enabling-Act
framework).
i. Apply the Rule unless unconstitutional even if it might abridge some state
substantive right.
d. If the FRCP is not directly on point, apply Byrd and Walker (Rules-of-Decision-Act
framework).
i. Is the state rule bound up with the rights and obligations of the parties, such
that applying the federal procedural rule would abridge a partys state-created
substantive rights?
1. If yes, apply state law.
2. If not, balance the federal procedural inerest in applying federal law
agains the likelihood of forum shopping.
a. How likely is it that application of this federal law will lead to
forum shopping?
b. What is the federal courts interest in the application of the
federal procedural law to this case?
3. Is a party trying to bring a claim in federal court in diversity that it could not bring in the
courts of that state?
a. D argues: If this were in state court in NJ, the NJ court would dismiss for lack of
jurisdiction, just as the CT court dismissed the same-sex couple civil-union case based on
its statute.
b. P argues: The NJ state law limits state courts jurisdiction. But we have a congressional
statute that specifies when jurisdiction is proper in federal court, so under the federal
jurisdictional statute, the federal court would hear the claim.
c. D argues: The grant of diversity jurisdiction was not meant to enlarge anyones rights, it
was meant to provide another, less discriminatory forum. If the state legislature has
withdrawn jurisdiction from all state courts, federal courts shouldnt be able to hear the
claim either. Since this is not within the scope of the federal jurisdictional statute, the
Rules of Decision Act should apply. The states decision to close its doors reflects a
substantive policy of the state, which wsa to preclude certain claims from ever being
advanced against NJ residents and maybe others. This jurisdictional rule was essentially a
substitute for a choice-of-law rule. If Klaxon requires NJ federal courts to apply NJ
choice-of-law rules, it also requires them to apply NJs door-closing statutes.
d. Sterk: The question is easier if the state statute was procedural. If state courts were to
provide that no state court can enteratin a K claim unless it was first submitted to
mediators, hard to imagine that federal courts are deprived of jurisdiction. This might be
the kind of rule designed to reduce volume of cases in state courts, so if this was all the
state court was trying to do it is more procedural.

FULL FAITH AND CREDIT

1. As a general rule, a JUDGMENT rendered in one state that is consistent with due process is
entitled to Full Faith and Credit in another state. (Fauntleroy v. Lum)
a. This also applie to all judicial proceedings without limitation. Equity decrees for the
payment of money thus qualify for FFC. But remember the distinction between judicial
proceedings and statutes.
b. THERE IS NO PUBLIC-POLICY EXCEPTION TO FFC!
c. This is so even if a party is alleging that the judgment was erroneous (should have
appealed). (Fauntleroy)
2. Does the judgment meet the basic requirements of due process, i.e., personal and subject-
matter jurisdiction?
a. Personal jurisdiction
i. If the Defendant did not appear in the original proceeding to contest PJ, he can
attack it collaterally later in a different court.
ii. If the Defendant did appear and had the opportunity to contest PJ, then he cannot
collaterally attack it.
b. Subject-matter jurisdiction
i. If the Defendant did not appear in the original proceeding to litigate SMJ, he can
attack it collaterally later in a different court.
ii. If the Defendant did appear and full and fairly litigated SMJ, he cannont
collaterally attack it. (Durfee)
1. Durfee suggests, but does not definitively say, that Defendant cannot
collaterally attack SMJ if he had the opportunity to fully and fairly
litigate SMJ. This issue is unresolved, so argue it.
3. Did the party have an opportunity to full and fairly litigate the issue in the previous
proceeding?
a. If so, general principles of res judicata prohibt relitigation of the issue in another forum.
4. Would the issuing court treat the judgment as final?
a. The FFCC does not require a second state to give FFC to a judgment the issuing court
does not treat as final. (Worthley)
i. However, the second state may still enforce the nonfinal judgment. (Worthley)
ii. In the case of a modifiable decress/nonfinal judgment being enforced by a second
state, the Defendant should argue that he is being deprived of his property rights
without due processs of law.
1. A second state must give a Defendant the same opportunity to
litigate a nonfinal judgment as would the rendering state. (Worthley)
b. Normally, a judgment is not final until the time to appeal has ellapsed.
i. However, if the rendering state would treat it as final while theres still time to
appeal, the second state must enforce it as if it was final.
5. Was the party purportedly bound by the judgment a party to the proceeding?
a. If not, the party is not bound by the judgment. (Baker; Clark; Fall v. Eastin)
b. Would the rendering court treat the party as bound by their judgment? (Baker)
i. If not, great evidence that party isnt bound elsewhere.
c. Exceptions:
i. A minor may sometimes be considered represented by her parents in a
proceeding, and so be bound by any judgment resulting from it. (Yarborough)
6. Does a party seek FFC for a rendering states enforcement mechanism?
a. Second state must enforce a valid, final judgment of another state, but it is not required to
do so in the same way as the rendering state. In other words, the second state need not
issue an injunction where the rendering state did or would. (Baker)
7. Would the judgment regulate behavior that takes place in a second state (either explicitly or
implicitly)
a. If a state renders a judgment that purports to preclude a second state from rendering a
judgment on facts that occur after the judgment, Stones dissent in Yarborough suggests
that the first states judgment isnt binding as to those later-occurring facts.
8. Would the judgment interfere with a second states administrative convenience or court
procedure?
a. A forum may always apply its SOL, so if the forum decides that a judgment is stale under
its SOL, it can refuse to enforce it. State must apply its SOL to similar domestic
judgments.
 i. The party seeking enforcement must then go back to the rendering state and
revive the judgment.
b. Again, the second state need to provide the same remedies as the rendering state. (Baker)
c. A second state may not enforce a rendering states judgment that would prevent evidence
being given in the second states courts. (Baker)
9. Does the judgment purport to control disposition of devolution of real property in another
state?
a. Second state, in which property is located, need to recognize the judgment.
b. This comes from Fall v. Eastin. In that case, WA court ordered husband, who was in the
state, to transfer his NE property to his wife. He did not, but later transferred it to a third
party. The wife goes to NE and sue to quiet title, relying on the validity of the WA
judgment. NE court refuses to recognize WA judgment because (1) it is the sole
mistress of property within its borders and (2) to protect bona fide purchasers (3rd
parties) who were not parties to the WA proceeding.
i. Wife should have sued in NE for specific performance of the WA judgment, not
to quiet title (which assumes that the property is hers already).
ii. WA did all it could do, which was order the WA parties who own the NE land to
do or refrain from doing certain things with it, thus indirectly affecting the NE
land.
10. Does the judgment relate to a worker-compensation award?
a. If so, under Thomas, a second court can give a supplementary award based on facts that
arose after the judgment. Probably key that this was an administrative proceeding.
b. Although its unclear whether Thomas extends to other administrative or judicial
proceedings, it probably only applies to worker-compenstationi.e., limited to this and
similar situations.
11. Is the judgment based on a penalty?
a. Under Milwaukee v. M.E. White. Co.,
12. Is the action one in which there is exclusive jurisdiction in federal courts?
a. Even when exclusively federal claims are at stake, there is no universal right to litigate a
federal claim in a federal district court. So, where a state court renders a judgment on an
exclusively federal claim, that judgment is binding on a federal court. (Matsushita)
i. Plaintiffs remedy is to appeal in the state court.
ii. However, Kalb is to the contrary to Matsushita. It held that a state court could not
entertain an exclusively federal claim.
1. Matsushita distinguished Kalb by saying the federal statute at issue there
explicitly prohibited common-law claims, whereas the statute at issue in
Matsushita did not.
b. This is not a constitutional FFC issue (because that clause on ly deals with states
recognizing other states judgments), but a FFC Act issue.
i. FFC Act provides that all federal courts must treat a state-court judgment
with the same respect it would receive from the courts in the rendering state.
13. Is this a divorce judgment?
a. Ex parte
i. Was the spouse who received the ex parte divorce judgment domiciled in the
rendering state? (Williams I)
1. If so, the absent spouse will be be bound by the judgment unless he is
successful in collaterally attacking domicile. (Williams II)
ii. Did the ex parte judgment purport to extinguish the absent spouses alimony
rights?
1. If so, the absent spouse is not bound by the judgment because it
eliminated their property rights without due process of law. (Estin)
 2. Treat it like PJshe can collaterally attack PJ if she didnt appear and
litigate it in ex parte proceeding.
3. This leaves the absent spouse with the undesirable options of either
appearing at the proceeding to protect their marriage or not appearing to
protect their economic rights.
iii. Did the ex parte judgment extinguish the absent spouses dower rights?
1. If so, the absent spouse is bound by the judgment. (Simons)
2. Simons court decided that dower rights were not like alimony rights. Its
concern was with multiple wives (past and present) asserting dower
rights.
3. After Simons, must decide whether the rights at issue in a divorce
proceeding are like support (alimony) or dower.
iv. Did the ex parte judgment affect custody of the other spouses children?
1. If so, absent spouse not bound by the judgment. (May v. Anderson)
2. You need PJ over a spouse to adjudicate their custody rights. BUT SEE
UCCJA BELOW (eliminates this requirement).
b. Bilateral
i. Divorce judgment in which domicile was litigated is binding on everybody.
(Sherrer)
ii. If both spouses appeared, a divorce judgment affecting alimony is binding on the
spouses as well as third parties in privity. (Johnson)
1. In Johnson, daught cant contest parents domicile where her support
rights were cutoff by divorce judgment. She did not have standing.
c. Consent
i. Where the spouses appear and consent to divorce in jurisdiction, the divorce
judgment is valid.
1. Argue that they still were not validly domiciled in the jurisdiction. (Alton
v. Alton)
2. However, argue, under Rosenstiel v. Rosensteil, that where theres
consent of the parties, the divorce judgment is valid even without valid
domicile.
d. DOMA
i. No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any
other state, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such other
State, territory, possession, or tribe, or a right or claim arising from such
relationship.
ii. Basically, FFC is not required for same-sex marriages or their dissolution
under DOMA.
1. States may decide, however, to give such marriages/dissolutions FFC.
That is, unless the state legislature enacts a mini-DOMA instructing its
courts to deny FFC.
iii. Constitutional authority to enact DOMA
1. DOMA is constitutional b/c Effects Clause Congress has authority to
reduce the effect of the FFCC. Congress may by general laws prescribe
the manner in which such acts shall be proved, and the effect thereof.
2. DOMA is unconstitutional First sentence of FFCC reads: FFC shall be
given in each State to the public acts, records and judicial proceedings of
every other state. We cant read this sentence out of existence by
focusing on the second sentence.
 3. DOMA is constitutional No, the first sentence is the DEFAULT
position, and Congress can still enact a statute that prescribes what effect
judgments should have in other states.
4. DOMA is constitutional b/c Judgments vs. Statutes A marriage is often
a public act, not a judicial proceeding. Under FFCC, states may refuse to
give effect to the public acts of other states on strong public-policy
grounds, but not to their valid judgments.
5. DOMA is constitutional b/c Marriage is Not a Judicial Proceeding If
marriage is treated as a judicial proceeding in a state, then other states
must honor it. But since marriage is not a judicial proceeding and can be
administered by pastors and administrative officials, states dont have to
honor marriages.
6. DOMA in unconstitutional b/c It Is a Door-Closing Statue Invalid
under Hughes v. Fetter b/c it allows states to discriminate against out-of-
state rights.
iv. Before DOMA, a same-sex couple who wanted their marriage in one state to be
recognized in other states had to go the courts of the first state and seek a
declaratory judgment. Since there is no public-policy exception to FFC, others
states would then have to recognize the marriage.
v. After DOMA, others states need not recognize even the declaratory judgment.
vi. DOMA does not apply to adoption because an adoption is between a parent and a
child, not a same-sex couple.
vii. DOMA issues interact with issues of ex parte and bilateral divorce. See
arguments and hypos on other outline, pg. 53-54.
14. Is the judgment related to child custody?
a. Under May v. Anderson, a court would need PJ over both spouses to render a binding
judgment affecting child custody. However, the UCCJA changed things.
b. Uniform Child Custody Jurisdiction Act (UCCJA)
i. Establishes a home state for a child. The courts of that state have primary
jurisdiction over matters pertaining to the childs custody. Other states must defer
to the jurisdiction of the home state.
ii. Home state is the state the child has lied in with a parent or a person acting as a
parent for at least six months at any time within six months before the petition is
filed. (Welch-Doden)
iii. Under the UCCJA, there can never be two home state, but there can be no home
state.
1. If theres no home state, a state can exercise jurisdiction only if (a) one
parent has significant connection with the jurisdiction, and (b) there is
substantial evidence available in the jurisdiction.
iv. The home state remains the home state, and has exclusive jurisdiction over
custody issues with respect to the child, until it loses jurisdiction or declines to
exercise jurisdiction. (Graham v. Superior Court)
1. The original home state cannot relinguish jurisdiction unless (1) there is
virtually no more connection between either the child, or the child and
one parent, to the jurisdiction, and (2) a lack of substantial evidence in
the jurisdiction.
2. So, even if a child and one parent moves from the original home state for
longer than six months and thus has a new home state, the original will
likely still maintain exclusive jurisdiction unless (1) one parent remains
in the original home state and (2) there is substantial evidence in there.
 v. DOMA does not apply to custody and visitation orders. In Miller-Jenkins, VA
court denied FFC to a VT custody order on grounds of DOMA. But that was held
by the VT high court to be improper grounds for denying FFC to the VT
judgment, so it doesnt need to give the VA judgment FFC.
vi. Is the UCCJA constitutional?
1. The statute allows a state to make custody determinations without PJ
over both parents. Under May v. Anderson, this would be
unconstitutional. The statute is written as if most of May was dicta. That
case said that a state is not compelled to give FFC to custody
determinations without PJ over both parents. But, then, a statute can
require courts to recognize such custody determinations. UCCJA forces
the parent without PJ to appear in the first state regardless.
15. Are there two or more inconsistent judgments at issue?
a. A court must give effect to the last judgment issued. (last-in-time rule from Treinies v.
Sunshine Mining)
b. The party contesting the prior decision collaterally should have appealed in the first
jurisdiction.
c. This applies even if the prior judgments were erroneous. (Trienies; Fauntleroy; Sunoil)
16. Is the judgment of a federal court sitting in diversity in play?
a. Under Semtek, the federal judgment will have the same preclusive effect as a state court
in the jurisdiction would give it, notwithstanding language like on the merits.
i. Sterk claims this is problematic because there is no way to know what preclusive
effect a state court would give a dismissal without the state court deciding the
claim.
ii. The court assumes that there is a body of law out there that will tell us whether
the judgment barred relitigation in the rendering court or everywhere.
iii. The result is that once the case gets to another jurisdiction, the other jurisdiction
can do whatever it wants because it wont find guidance from the first states law
on what to do.