Agenda for 19th Class

1. Agenda for 19th Class • Admin • Handouts • Name plates • Office hours • Today. Booked up with student appointments • Email for appointment later this week or next week • Court visit • Tuesday, November 19, 1:20-4:30PM, but keep all afternoon clear • Lunch. • Thursday. Noon-1. Glassed-in side, as far from TV as possible • A Civil Action panel – Thursday, November 21 at 7PM in WCC 2004 • Review class – Thursday, December 9, 1:10-3:10PM in WCC 2004 • Review of McIntyre and Burger King • Jurisdiction & internet continued • Venue and Erie • Introduction to Choice of Law

2. Assignments I • T. 11/19 (court visit) • Info about Judge Stearns (on webpage) • Papers in Plouffe 12(b)(6) motion (on webpage) • Th 11/21 (A Civil Action panel) • By Wednesday midnight, email dklerman@law.usc.edu at least one question that you would like to ask Cheeseman, Facher, Nessonand/or Schlichtmann • Question should be about case and/or book • Not about movie • As moderator, I will call on you to ask questions • You can ask the question you emailed to me • Or you can ask a question that responds to prior comments by panelists

3. Assignments II • M 11/25 (regular class) • Court visit • In what way was court different than you expected? • Do you have any questions about what you saw or heard? • Erie (continued) • Yeazell 251-55, 258-66 • Erie Questions on slide that follows next slide • Optional. GlannonCh. 11 • Choice of Law • Choice of Law Handout • Choice of Law Questions on slides which follow • Optional. Glannon Ch. 12

4. Assignments III • T 11/26 • Res Judicata • US Constitution Article IV (Supplement p. 1) • 28 USC 1738 • Yeazell pp. 715-27 • Yeazellp. 727 Q1 • Optional: Glannon Chapters 26 & 27 • Collateral Estoppel • Yeazell 749-67 • Yeazellp. 750 Qs 1-3 • Yeazell p. 753 Q 2 • Yeazell p. 756 Qs 1-4 • Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b • Optional. Glannon Chapters 28 and 29

5. Erie Questions • Suppose West Dakota courts requires the complaint to be submitted on 8.5”x14” paper, while the local rules of the federal court in the district of West Dakota requires the complaint to be submitted on 8.5”x11” paper. Under the Erie doctrine as interpreted by Guaranty Trust, what size paper should be used in diversity cases? Does your answer depend on whether plaintiff filed the complaint in federal court 1 minute before the statute of limitations expired? • Suppose West Dakota has a summary judgment practice different from the that which has governed in the federal courts since Celotex. In West Dakota, a defendant may not prevail by pointing out that plaintiff lacks evidence on an issue, but rather the defendant can only prevail on summary judgment by presenting undisputed evidence on every issue. If a diversity case is filed in federal district court in West Dakota, what standard should apply if the defendant files a motion for summary judgment? Is the answer and/or analysis different under Guaranty Trust than under Hanna?

6. Choice of Law Questions I • 1) Suppose Wes, a resident of West Dakota, gets into an accident with East, a resident of East Dakota, on a highway in West Dakota. Wes sues East in West Dakota state court alleging per se negligence because East was driving 79 miles per hour. No speed limit was posted. West Dakota law states that, unless otherwise posted, the speed limit on a highway is 70 miles per hour. East Dakota law, however, states that, unless otherwise posted, the speed limit on a highway is 80 miles per hour. Which state’s law applies to this dispute? Is your answer different under the traditional lex loci commissirule than under the Restatement Second? If your answer is different, which rule makes more sense? • 2) Same as (1) except Wes sues in West Dakota federal district court. • 3) Same as (1) except Wes sues in East Dakota state court.

7. Choice of Law Questions II • 4) Driver and Passenger are both domiciled in West Dakota. Driver drives passenger to East Dakota. While in East Dakota, Driver talks on his cell phone and causes an accident in which Passenger is injured. Passenger sues Driver in West Dakota state court for negligence. According to East Dakota law, passengers have no right to sue drivers for injuries caused by negligence. According to West Dakota law, passengers can sue drivers for negligence. Which state’s law applies to this dispute? Is your answer different under the traditional lex loci commissirule than under the Restatement Second? If your answer is different, which rule makes more sense? • 5) Same as (4), except Passenger sues in West Dakota federal court. • 6) Same as (4) except Passenger sues in East Dakota state court.

8. Choice of Law Questions III • 7) Spend, a Nevada domiciliary, is completely irresponsible with money. Fortunately, he recognizes this fact and has set up a spendthrift trust. Under the terms of the trust, Spend cannot borrow money without the consent of Trustee, a friend he trusts. Spend goes to California and borrows money there from Sharkey to be repaid in one year at Sharkey’s place of business in California. When Spend doesn’t repay the loan, Sharkey sues Spend in Nevada. Under Nevada law, loans to someone who has set up a spendthrift trust are void. California law does not allow people to set up spendthrift trusts, so under California law, such loans are enforceable. The traditional rule for contracts was the law of the place the contract was formed governs disputes about contract validity. Under the traditional rule, what state’s law would apply? Under the Restatement Second, which state’s law should apply to the dispute? If the traditional rule and Restatement Second suggest different answers, which makes more sense? • 8) Same as (7), except Sharkey sues in California state court. • 9) Same as (8), except Sharkey traveled to Nevada, loaned Spend the money there, with repayment to be made to Sharkey when he returns to Nevada a year later.

9. Choice of Law Questions IV • 10) Same as (7), except the loan contract includes the following clause: “This contract shall be governed by California law.” The traditional rule was not to enforce choice of law clauses. See also Restatement (Second) below • § 187. Law Of The State Chosen By The Parties • (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue. • (2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either • (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or • (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

10. Choice of Law Questions V • Plaintiff in Phillips brought the case in federal district court in Montana. Why is there a decision of the Supreme Court of Montana? • In Phillips, the Montana Supreme Court observes that “applying the law of the place of manufacture would be unfair because it would tend to leave victims under compensated as states wishing to attract and hold manufacturing companies would raise the threshold of liability and reduce compensation…. [A state with a high concentration of manufacturing] could enjoy all the benefits associated with liability laws which favored manufacturers in order to attract and retain manufacturing firms and encourage business within its borders while placing the costs of its legislative decision, in the form of less tort compensation, on the shoulders of nonresidents injured by its manufacturers’ products.” (p. 249). • Suppose Montana has a relatively low concentration of manufacturing. Would its citizens benefit by laws which raised the threshold of liability and reduced compensation? Or would its citizens benefit by laws which lowered the threshold of liability and increased compensation? If it lowered the threshold of liability and increased compensation, who would bear the increase in costs? What does this suggest about the fairness of applying Montana law?

11. Choice of Law Questions VI • In Phillips, the Montana Supreme Court asserted that “we do not believe that the purpose of any potentially applicable Michigan product liability law would be to regulate the design and manufacture of products within its borders. The purpose of product liability law is to regulate interstate sales or sales to residents and to set the level of compensation when residents are injured. ” (p. 249) • If the plaintiffs in Phillips had filed the case in Michigan state court, do you think Michigan state judges would have agreed that its laws are inapplicable? What purpose might a Michigan judge ascribe to product liability law to show that Michigan law should apply? • If you were a judge on the Montana Supreme Court, would you have retained the traditional lex loci commissi rule, or would you have voted (like the actual Montana Supreme Court) to adopt the Restatement (Second) most significant relationship approach? Why?

12. Court Visit Info I • No cell phones or laptops • Dress • Marsha Zierk (Career Law Clerk): “Judge Stearns expects formality in the courtroom -- so jackets are not necessary, but jeans don't work either. I think a shirt and tie is great -- especially if they plan on filing clerkship applications! -- but otherwise, business casual.”

13. Court Visit Info II • 12:30. I will leave my office, Griswold 206 • If you want to take the T together, please meet me at my office • 1:20 or earlier. Arrive at courthouse, go through security • Courthouse Way, Boston MA • 12 minute walk from South Station stop on Red Line • 1:40. Meet with Marsha Zierk, Career Law Clerk • Courtroom 21 on 7thFloor • Runs civil side of courtroom; manages docket. manages law clerk and intern assignments; involved in hiring interns & law clerks • 2:00. Pigniaro v Standard Insurance • Summary judgment motion in ERISA case • Papers sealed, so cannot distribute • 3:00. US v Noe & Baker • Request for return of property seized as part of arrest • Pro se litigant • Papers on class webpage • 3:30. Plouffe v Dighton • 12(b)(6) motion in gun rights case • Papers on class webpage • Discussion with Judge Stearns and law clerks between hearings or after 3:30PM hearing

14. Exam • 8 hour take home • Open book • Designed not to be time pressured • 8 old exams and model answers posted to class webpage • Wait at least one week to do • Remember • Law has changed • Course coverage has changed • You will have more time • Model Answer to 1995 Q1 posted to iSites • HoGo work ok? • How to study • Make your own outline • Glannon • Old exams, especially 2000 (includes multiple choice) and 2001 & 2002 • Most people spend too much time outlining, not enough time on Glannon and old exams • Day before exam (12/15) do 3 old exams (2-3 hours each) & rigorously compare your answer to model answers. • Write exams independently, but discuss answers with study group • Sleep well, eat well, get some exercise

15. Review of Last Class I • McIntyre • Court continues to be divided on Stream of Commerce • Kennedy + 3. • Defendant must “target” the jurisdiction • Putting product in stream of commerce not enough to show purposeful availment • Ginsburg + 2 • Establishing distribution network to serve whole US sufficient to show purposeful availment of particular U.S. states • Breyer • This case is anomalous. • No jurisdiction, because only a few of McIntyre’s machines were sold to NJ • Seems also to endorse narrow view of O’Connor’s Stream of Commerce Plus approach • No majority opinion

16. Review of Last Class II • Burger King • Suppose A is from AL and C is from CA and suppose A and C enter into a contract with each other • Broad interpretation of Burger King: • If A sues C or C sues A, then both AL and CA always have jurisdiction over the case • Narrow interpretation of Burger King • If A sues C, then AL has jurisdiction over the case only if: • the contract was part of a continuing commercial relationship between A and C, and/or • the defendant was sophisticated • Similar analysis if C sues A in CA

17. Review of Last Class III • Jurisdiction and Internet • Zippo • Jurisdiction depends on how active the website was • Note that Zippo was only district court decision • Unclear theoretical basis • Why should defamation be less likely to establish jurisdiction where viewed if posting was by website owner on passive website than if posting was by 3rd party on interactive website? • Revell • No jurisdiction in state X simply because website defamed victim residing in state X • Must also show events discussed and/or readership were in victim’s state • Tries to narrow Calder “effects test” • Handout Problems 2-18 & 2-19

18. Venue: 28 USC 1391 • (b)(1). If all defendants reside in the same state, venue is proper in any judicial district in which at least one defendant resides • For individuals residing in US, residence = domicile. (c)(1) • Confusing, because domicile is usually defined as residence + intent to remain indefinitely • Corporations are resident in any district in which they would be subject to personal jurisdiction, if district were considered a state. (d) • If reside in district, then reside in state in which district located • (b)(2). Venue is proper in judicial district where event or omission giving rise to claim occurred • (b)(3). If no district satisfies (b)(1) or (b)(2), then venue is proper in any district in which in which any defendant is subject to personal jurisdiction. • (c)(3). Defendant not residing in US can be sued in any district • Joinder of person not residing in US disregarded in determining venue when multiple defendants • IMPORTANT. Even if venue is proper, court still needs to have personal jurisdiction over EACH AND EVERY defendant.

19. Venue Questions • YeazellPp. 175ff. Qs 1,2,4a,b,d (ignore the reference to 28 USC 1392) • Briefly Summarize Dee-K Enterprises • Yeazell P. 176 Q5; pp. 178ff Q1a, 2

20. Moving Cases Around • From one federal court to another • 28 USC 1404 says cases may be transferred “to any other district .. where it might have been brought” “for the convenience of the parties and witnesses, in the interest of justice.” Even if venue was proper in the first place • 28 USC 1406 says that court can transfer case if venue was improper in the first place. • Without statute, one might think that the court didn’t have power to do anything • No comparable ability to transfer case between judicial systems • E.g. from one state court to a court in a different state or foreign country • E.g. from federal court to court in foreign country • If judge thinks that her court has jurisdiction, but that a court in a different state or country would be better, the judge must dismiss the case • Forum non conveniens • No transfer or forum non-conveniens to move case from federal to state court or vice versa • State to federal court. Removal • Federal to state. Abstention.

21. Forum Non Conveniens Questions • Briefly summarize Piper Aircraft • In your summary, please incorporate answers to pp. 186ff Qs1, 4, • Suppose a chemical plant in India owned by an American company leaks gas into the surrounding neighborhood and kills 16,000 people and injures half a million. The victims sue in US court. Defendants move for dismissal on the basis of forum non conveniens. The plaintiffs argue that dismissal is inappropriate, because Indian courts require a filing fee equal to 5% of damages claimed, which in this case could be billions of dollars. There are long delays in Indian courts. Indian courts have very few tort precedents and none relevant to mass torts. Discovery is usually very narrow, if allowed at all. Should the court grant the forum non conveniens motion? If it does, are there any conditions it should attach?

22. Erie Questions • Briefly summarize Erie • Yeazell p. 248. Q1b

23. Introduction to Choice of Law • Courts do not always apply their own law • Federal courts apply state law in diversity cases • State courts apply federal law when required by the Supremacy Clause • Sometimes one state court applies the law of another state • If MA citizen gets into accident in CA and is sued in MA, MA court is likely to apply MA traffic law • If NY citizen and UK citizen get married in UK and then move to NY, UK law may govern validity of marriage • Choice of law (a.k.a. conflict of law) answers the question “whose law applies?” • MA or CA law • US or UK law • Choice between federal or state law is not usually considered choice of law question • Rather Erie, Supremacy Clause, or preemption question • Major change in 20th century • Traditional rules. Rigid, territorial • Modern rules. Evaluations of interests of relevant states • Restatement 2nd • Federal courts apply choice of law rules of state where sitting (Klaxon) • Like personal jurisdiction and 4(k)(1)(A)