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Abstract:
If a person in one state posts on the Internet a libelous statement about a person living in another state the question often arises as to whether the person with the injured reputation can sue in his home state or must bring suit in the courts of another state, presumably the home state of person who posted the offending statement. Courts have reached inconsistent results on this question in an effort to apply the U.S. Supreme Court's minimum contacts jurisprudence. This article examines the approaches of the lower courts and argues that they have mostly ignored the most relevant Supreme Court precedents, 1985 cases in Keeton v. Hustler and Calder v. Jones. The article also compares the approach of the U.S. courts to the E.U. courts interpreting the Brussels Convention and Regulation.

Internet, libel, minimum contacts, jurisdiction, Keeton v. Hustler, Calder v. Jones

Abstract:
Although the Full Faith and Credit Clause is often assumed by the popular press and some legal commentators to impose a mandatory duty on states to recognize same-sex marriages validly celebrated in another state, this common assumption is clearly false. States have always retained the power to refuse to recognize some out-of-state marriages that violate their expressions of public policy. This has happened with, for example, marriages involving underage spouses or marriages that violate a state's consanguinity rules. Marriages do not stand on the same constitutional footing as litigated judgments. As a result, whether a state chooses to recognize a same-sex marriage celebrated in another state is a function of the recognizing state's law and its conflict-of-laws principles and not a matter of constitutional compulsion.

full faith and credit, same-sex marriage, conflict of laws

Abstract:
Beginning in 1963, U.S. conflict-of-laws principles began to alter drastically. Out its way out was the vested rights theory that produced fairly certain rules, such as the place-of-the-injury rule for tort cases, and on their way in were a host of modern theories including interest analysis, the Second Restatement of Conflicts' most significant relationship test and Leflar's choice-influencing considerations. This article studies the result patterns in 802 U.S. tort conflict-of-laws cases. It concludes that the modern theories are much more likely to produce results that favor plaintiffs, the application of local law and the law that favors local parties. The modern theories also largely work in a similar fashion, despite significant verbal differences between them.

Conflict of laws, choice of law, interest analysis, vested rights

Abstract:
In 1963 the New York Court of Appeals made history by breaking from the place-of-the-injury rule in tort conflicts cases. Ten years later New York's high court again made history, this time for attempting to craft new and narrower rules in tort conflicts. However, the new and narrower rules essentially amount to a common domicile exception to the old place-of-the-injury rule.

choice of law, conflict of law, New York Court of Appeals

Abstract:
Procedural due process has always been seen as having at least three independent strands. One is the jurisdictional or minimum contacts strand. That strand, derived from the Supreme Court's decision in International Shoe Co. v. Washington, requires that a defendant in a civil case have at least a minimal connection to a state before he can be forced to defend an action there. Another is the fair procedures or administrative due process strand. That strand, emanating principally from the Supreme Court's Mathews v. Eldridge decision, requires that for additional procedures to be mandated that they must be cost-justified relative to the private party's interest and the increased accuracy of the resolution of the case. Finally, there is the fair notice strand to which the Supreme Court's 2006 decision in Jones v. Flowers is addressed. The Jones decision actually imports some of the cost-benefit analysis of the fair procedures strand. Moreover, the reasonableness component of the jurisdictional due process strand can be recast along the same lines. Thus, it may be possible to have a coherent and unified theory of procedural due process.

jurisdiction, due process, civil procedure, cost-benefit, notice

Abstract:
While history records resistance, choice-of-law and choice-of-forum clauses enjoy widespread enforcement in the United States and Europe today as a recognition of the value of party autonomy in transactions increases. Yet not all such clauses can be enforced -- imagine a murder-for-hire contract that attempted to circumvent strong forum policy against murder through a choice-of-law clause. The methods by which the United States and Europe determine whether such clauses should be unenforceable differ, and their substantive results are also diverging. As a general matter, European courts will not enforce a party's choice to evade so-called "mandatory rules," to deprive a consumer of the benefit of his home state's laws, or to deprive an employee of his home state's protections. Historically, American courts recognized similar exceptions but eschewed categorical exceptions in favor of a flexible and case-by-case "public policy" exception. Today, American courts are increasingly willing to enforce clauses even if they fall within what could be termed categorical exceptions to party autonomy in Europe.

Abstract:
While history records resistance, choice-of-law and choice-of-forum clauses enjoy widespread enforcement in the United States and Europe today as a recognition of the value of party autonomy in transactions increases. Yet not all such clauses can be enforced -- imagine a murder-for-hire contract that attempted to circumvent strong forum policy against murder through a choice-of-law clause. The methods by which the United States and Europe determine whether such clauses should be unenforceable differ, and their substantive results are also diverging. As a general matter, European courts will not enforce a party's choice to evade so-called "mandatory rules," to deprive a consumer of the benefit of his home state's laws, or to deprive an employee of his home state's protections. Historically, American courts recognized similar exceptions but eschewed categorical exceptions in favor of a flexible and case-by-case "public policy" exception. Today, American courts are increasingly willing to enforce clauses even if they fall within what could be termed categorical exceptions to party autonomy in Europe.

Abstract:
Although U.S. choice-of-law (or conflict-of-laws) principles have been notoriously unstable and have led to unpredictable results, matters may be settling down to the point where conflicts rules or near-rules are emerging. To be sure, they are narrower rules than the ones that were employed by U.S. courts before the revolution began in the 1960's, but their emergence may foster increased predictability and stability in litigation. Nebraska makes for an interesting case study as much of its new conflicts jurisprudence can be distilled into rules or near-rules.

Nebraska, conflict of laws, choice of law

Abstract:
In 1990, in Burnham v. Superior Court, the U.S. Supreme Court upheld the traditional rule that a civil defendant could be subjected to personal jurisdiction in a state simply by being physically served with the summons while in the state, no matter how brief or casual the defendant's presence. The validity of this tag rule of jurisdiction had been assumed to be in jeopardy as a result of the Supreme Court's 1977 decision in Shaffer v. Heitner which stated in dictum that it was unconstitutional for a state to exercise jurisdiction over any defendant lacking minimum contacts with the state. The Burnham Court, however, could not agree on a rationale. Four justices essentially rejected Shaffer and concluded that the historical pedigree of the tag rule immunized it from constitutional scrutiny. Four others accepted the Shaffer rationale but applied a watered-down version of the minimum contacts test. Justice Stevens in his lone opinion apparently agreed with both rationales. Burnham lays bare the confused origins of the notion that issues of state-court jurisdiction are a matter of constitutional significance. This article argues that this confusion stems from the highly ambiguous 1877 opinion in Pennoyer v. Neff. While Pennoyer seemingly introduced the notion that the Due Process Clause limited state court jurisdiction, plausibly the opinion meant only that due process principles guarantee a defendant an opportunity to challenge jurisdiction. This shaky foundation has led to a confused Supreme Court jurisprudence in this area. The article argues that the Supreme Court should dramatically limit the doctrine and invalidate only those attempted exercises of jurisdiction that put the defendant at a practical disadvantage.

jurisdiction, due process, minimum contacts, transient presence, Pennoyer v. Neff,Burnham v. Superior Court, state-court jurisdiction

Abstract:
In 1992, Louisiana became the first (and still the only) state to codify its choice-of-law doctrine. The conflicts rules that it created in statutory form are far removed from the pre-conflicts-revolution rules such as the lex loci delicti rule in tort cases. Rather, the Louisiana codification consists of somewhat softer and narrower rules. This article attempts to measure whether this codification has produced any improvement in decisional predictability in Louisiana courts. As a proxy for decisional predictability it uses the affirmance rates of Louisiana courts in conflicts case before and after the codification. The article concludes that the Louisiana codification produced a statistically significant increase in the affirmance rate and thus by inference in the decisional predictablity of Louisiana conflicts decisions.

conflict of laws, choice of law, Louisiana, codification

Abstract:
The Supreme Court's 2008 decision extending the constitutional right of habeas corpus to non-citizen detainees held at Guantanamo Bay is a remarkable decision on many levels. Although the Supreme Court had previously held to a mostly sovereignty based, territorial methodology for determining whether U.S. constitutional rights would be extended extraterritorially, latent in the Court's jurisprudence had long been a strain of the "personal law" principle. That personal law principle was the analytical basis for reorientation of U.S. conflicts law away from territoriality to interest analysis. In Boumediene v. Bush, the Court was required to confront the competing territoriality and personal law strands of its jurisprudence. Its attempt to reconcile the two into a "functional" test mimics the same struggle that U.S. courts have had for the last four decades trying to accommodate those competing concerns on conflict of laws. Thus, this article argues that the Supreme Court's decision is best understood as a conflict-of-laws decision.

Guantanamo Bay, Cuba, habeas corpus, conflict of laws, extraterritoriality, interbushnational law, constitutional law, war on terror, boumediene

Abstract:
The conventional explanation for the inclusion the grant of diversity jurisdiction (i.e., federal court jurisdiction in cases between citizens of different states) in the Constitution and the first Judiciary Act is that it was necessary to prevent state-court discrimination against out-of-staters. However, the weight of the historical evidence supports the conclusion that diversity jurisdiction was also aimed at the application of parochial state laws, particularly state debtor protection enactments. This second purpose of diversity jurisdiction cuts against the Supreme Court's 1938 decision in Erie Railroad v. Tompkins which held that federal courts exercising diversity jurisdiction must apply the same substantive law as their state court counterparts. This article proposes a partially implementing diversity jurisdiction by over-ruling the Supreme Court's 1941 decision in Klaxon v. Stentor Electric which held that the Erie principle also requires federal courts to adhere to state choice-of-law rules. If diversity courts were to apply an independent choice-of-law approach they could avoid the forum-law bias that pervades most of state choice-of-law doctrine.

Abstract:
After decades of hostility to exclusive forum selection agreements (i.e., agreements that require parties to litigate only in a particular court), the Supreme Court embraced them in 1973 in The Bremen v. Zapata Offshore Co. The Bremen, however, involved two sophisticated business entities of roughly equal bargaining power. It was unclear, however, whether The Bremen's rationale extended beyond such contracts to consumer agreements. In Carnival Cruise Lines, Inc. v. Shute, decided in 1992, the Supreme Court extended The Bremen to this context. The Court thus enforced an exclusive forum selection clause printed on the back of a cruise line ticket and required a plaintiff to bring suit in Florida even though she was a resident in the State of Washington and was injured while the defendant's boat was sailing from Los Angeles. The Court reasoned that the benefits of lower costs to the cruise line in being able to funnel all litigation to a particular court would ultimately be passed on to the consumers of such cruises. The article argues, however, that consumers are at an informational disadvantage in such agreements and that it is cost-prohibitive for them in small transactions to estimate the burden placed on them by such a clause. The article thus proposes a comprehensive statutory scheme that would allow for enforcement of such clauses only in transactions exceeding $50,000.

forum selection clause, The Bremen, Carnival Cruise Lines, derogation, prorogation

Abstract:
This paper evaluates the effect of the Full Faith and Credit Clause and its implementing statute on the recognition by one state of a non-traditional marriage, most obviously a same-sex marriage, in another state. The paper argues that federal constitutional principles, including full-faith-and-credit principles, are almost entirely irrelevant to the debate. As a result, the question of whether one state will recognize another's same-sex marriage is a political decision that must be resolved state by state. The federal Defense of Marriage Act is thus constitutional, although it does little more than to state what the law would be without it.

Full faith and credit, defense of marriage act, same-sex marriage

Abstract:
In the 1990's, the Hague Conference on Private International Law began to consider drafting a worldwide convention on judgment recognition and jurisdiction in civil and commercial matters. This article identifies the issues and probable sticking points in these negotiations.

hague conference, jurisdiction, judgments, civil and commercial matters

Abstract:
As same-sex marriage has passed from a hypothetical to a reality in a few U.S. states, the conflict-of-laws questions are entering a new and more subtle stage of debate. Because marriages are not judgments for purposes of the Full Faith and Credit Clause, no serious argument can be made that a same-sex marriage celebrated in a state such as Massachusetts that allows them need be recognized in a state that does not. Indeed, about 40 of the states have a "Defense of Marriage Act" (or "DOMA") that expressly forbids recognition of same-sex unions. However, some collision between these state Defense of Marriage Acts and the Supreme Court's decision in Romer v. Evans seems inevitable. Romer struck down as unconstitutional Colorado's Amendment 2 which would have prevented any state or local legislation treating homosexuality as a protected class. While it seems unlikely that Romer will be extended to fully invalidate state Defense of Marriage Acts, some application of them might potentially conflict with Romer. This seems to be especially likely where a same-sex marriage creates a right that an unmarried couple could create in some other way, such as by drafting a will.

Abstract:
This report to USAID, in fulfillment of a federal grant, designs a model for the post-Castro resolution of property claims between the U.S. and Cuba. The model designs a bilateral tribunal to process claims by U.S. nationals against Cuba and a special Cuban claims court to process claims by U.S. nationals who were Cuban at the time of the taking, and whose claims are therefore covered by Cuban law. The report compares the proposed models to other international tribunals and domestic post-communist claims systems, analyzes FCSC files, and offers remedies in line with public and private international law norms as well as equitable concerns.

cuba, property, claims settlement, mediation, arbitration, uncitral, conflicts of law, usaid, creighton, international, havana, castro, miami, cuban-american, sugar mill, real property