1. Agenda for 9 th Class Jurisdiction in divorce cases Recognition of Judgments – Full Faith & Credit: Constitution & Statute – Fauntleroy v Lum – Baker v GM – DOMA Bishop v Oklahoma Miller v Jenkins Academic articles – Kramer – Whitten – Rensberger

2. Assignment for Next Class Constitutional Limitations on Choice of Law – Allstate Insurance v Hague (CB313-27) – Phillips Petroleum v Shutts (CB327-33) – Austin v New Hampshire (CB360-71) – Ely article (Handout 1-4) Questions on the following slides Optional – Hoffheimer, Ch. 24

3. Questions to Think About I Would the following be constitutional? – A Nevada resident purchased an accident insurance policy in Nevada and got into an accident in Nevada. The Nevada resident assigned his interest in the insurance policy to a California resident. The policy required all claims to be brought within a year. The one-year claim period is valid under the laws of Nevada, but under California law the minimum claim period is two years. The California resident filed suit in California court 18 months after the accident. The California court decided that California law applied and that the suit was not barred by the one-year claim period. – California resident was harmed in California by a product manufactured by a Nevada company. The Nevada manufacturer was insured by a Nevada insurance company that does business in every US state. The insurance contract stated that injured persons may not sue the insurance company directly, but must sue the manufacturer. Such clauses are valid in Nevada, but invalid in California. Because of personal jurisdiction issues, the plaintiff could sue the insurance company in California, but could only sue the manufacturer in Nevada. The California resident sued the insurer in California court, and the court decided the California law applied, so a direct suit against the insurer was proper.

4. Questions to Think About II Would the following be constitutional? An Illinois resident purchased personal property insurance from a British company licensed to do business throughout the U.S. Soon thereafter, the Illinois resident moved to California, where an item covered by the policy was stolen. The policy required all claims to be brought within a year. The one-year claim period is valid under the laws of Nevada, but under California law the minimum claim period is two years. The suit was filed in California court 18 months after the accident. The California court decided that California law applied and that the suit was not barred by the one-year claim period. Which opinion in Allstate v Hague did you find most persuasive? Would the result in Allstate v Hague be different if the plaintiff didnt work in Minnesota? What if he went there frequently to shop, hike, or visit a friend? Assume that if the accident had occurred in Minnesota that Minnesota law would apply. How can an insurance company fairly price its products? Suppose for example, that some Wisconsin residents frequently drive in Minnesota, while others nearly always drive in Wisconsin. Is it fair that they pay the same price? Would it be possible for the insurance company to charge them different prices? Is this constitutionally relevant?

5. Questions to Think About III When the Court in Shutts refers to the parties legitimate expectations, what does it mean? The Court in Allstate held that an insurance company doing business in Minnesota should not be surprised by the application of Minnesota law to a claim arising out of an event in Wisconsin. Why shouldnt a natural gas producer who does business in 50 states expect that the law of Kansas might apply to its leases in Texas or Oklahoma? How are courts supposed to conduct nationwide class action lawsuits after Shutts? Whose law applies? The Due Process standard articulated in Allstate v Hague and Shutts is much more lenient than the purposeful availment standard the Court applies in most personal jurisdiction disputes. Does this make sense? Given that a plaintiff must establish personal jurisdiction over the defendant in order for a suit to proceed at all, does it matter? Given the purposeful availment standard, how could State Xs law be applied if it could not be shown that the defendant had purposefully availed itself of the benefit of State Xs law?

6. Questions to Think About IV: Ely I How general is the problem that Ely is concerned about? – Can you think of a hypothetical involving contracts that shows discrimination similar to that in the auto accident cases that Prof. Klerman put in square brackets to illustrate Elys argument? – Can you think of a hypothetical involving statutes of limitations that shows discrimination similar to that in the auto accident cases that Prof. Klerman put in square brackets to illustrate Elys argument? Ely argues that Allstate v Hague is inconsistent with Austin, because the outcome would have been different if the plaintiffs residence had been different. Is that correct? Ely argues for a return to the rules of the First Restatement, except in common domicile cases, where he agrees that it makes more sense to apply the law of the state of common domicile. Can you think of a hypothetical under Elys proposed choice of law regime which shows discrimination similar to that in the auto accident cases that Prof. Klerman put in square brackets to illustrate Elys argument?

7. Questions to Think About V: Ely II Ely mentions that according to Huber, an influential 18 th century conflict of laws thinker, contractual capacity, at the time Constitution was drafted and ratified, was determined by the law of the partys domicile. Can you think of a hypothetical involving the contractual-capacity-follows-the-parties-domicile choice-of-law regime that shows discrimination similar to that in the auto accident cases that Prof. Klerman put in square brackets to illustrate Elys argument? – What does this imply about the constitutionality of modern choice of law approaches? Ely argues that Austin is wrong. Do you agree? Do you think that modern choice of law approaches violate the Full Faith & Credit Clause?

8. Jurisdiction in Divorce Cases Subject Matter Jurisdiction – One party needs to meet statutory residence requirements – Dean Altman thinks that courts might waive residency requirement if divorce not otherwise possible E.g. If same-sex couple married in Massachusetts but living in Texas cant get divorced in Texas, Altman thinks that Massachusetts courts might waive the residence requirement and grant the divorce Personal jurisdiction – To change status, just need personal jurisdiction over one spouse – To divide property, need personal jurisdiction over both spouses

9. Full Faith & Credit Constitution & Statute Full Faith & Credit Clause & 28 USC U.S.C. § 1738 – Which part of 28 USC U.S.C. § 1738 prescribes the Manner in which such Acts, Records, and Proceedings shall be proved? – Which part of 28 USC U.S.C. § 1738 prescribes …. the Effect thereof? – Is 28 USC U.S.C. § 1738 a general law? – The FFCC-SOA (Full Faith and Credit for Child Support Orders Act) is a federal statute which requires a state to enforce child support orders issued by another state. The PKPA (Parental Kidnapping Prevention Act) is a federal law requiring states to enforce custody orders issued by another states. Are the FFCC-SOA and PKPA general laws? – Is DOMA a general law? – Should states be required to give the same deference to other states records as they do to other states judgments? Are you convinced by Whittens arguments on the subject?

10. Fauntleroy v Lum Is this case based on the Full Faith & Credit Clause of the Constitution or on 28 USC U.S.C. § 1738? – Does it matter for the constitutionality of DOMA? Why do you think the parties arbitrated their dispute? Why do you think the plaintiff brought suit.. upon the award in Missouri rather than Mississippi? [Note that, at this time, in order to enforce an arbitration award, it was necessary to reduce to bring a suit to convert the arbitration award into a court judgment? What law applied to the suit in Missouri to enforce the arbitration award? Why did the plaintiff sue to enforce the Missouri judgment in Mississippi? Under Fauntleroy v Lum, which of the following would be valid reasons for Mississippi not to enforce the Missouri judgment? – The Missouri court did not have jurisdiction. Does it matter whether defendant contested or could have contested Missouris jurisdiction? – The Missouri court applied the wrong law to the dispute (e.g. Mississippi law rather than Missouri law or vice versa) – The Missouri court misapplied the law it chose (perhaps erroneously) to apply – The Missouri judgment violates a strong Mississippi public policy

11. Baker v GM; DOMA - Bishop v Oklahoma Baker v General Motors – Whose opinion did you find most persuasive? Ginsburgs? Scalias? Kennedys? – Why is this case different from Fontleroy v Lum? That is, even if one thinks the injunction issued by Michigan is bad policy, why arent other states required to respect it, just as Mississippi was required to respect the judgment entered by Missouri that it considered bad policy? – What if, instead of objecting to Elwells appearance in Missouri, GM had sued Elwell in Missouri court to enforce the Michigan injunction? Bishop v Oklahoma – If DOMA does not affect civil unions, does that mean that Oklahoma must recognize civil unions validity entered into in other states? – If DOMA does not affect marriages validly entered into in foreign countries, does that mean that Oklahoma must recognize them? – If DOMA does not affect civil unions or foreign marriages, are there ways in which such unions and marriages will be granted greater recognition than same-sex marriages contracted in U.S. states which currently allow such marriages?

12. DOMA: Miller-Jenkins Miller-Jenkins – Can you think of another way of avoiding the conflict between DOMA and the PKPA? – The FFCC-SOA (Full Faith and Credit for Child Support Orders Act of 1994) is a federal statute which requires a state to enforce child support orders entered into by another state. Suppose a lesbian couple is married, has kids, and divorces in Massachusetts. Part of the divorce decree requires one woman to pay child support. That parent moves to Texas and stops paying child support. The custodial parent sues in Texas state court to collect child support. What result?

13. Kramer, Whitten, Rensberger Kramer / Whitten / Rensberger – Whose arguments did you find more convincing about Congresss power to relieve states of the obligations under the Full Faith & Credit Clause? Kramer or Rensberger? – Were you convinced by Whittens analysis of the history of the Full Faith & Credit Clause? – To what extent are the historical arguments made by Kramer and Rensberger supported by Whittens analysis? – How, if at all, should the historical evidence affect modern interpretation of the Full Faith & Credit Clause? Kramer – How would you argue that Congresss power to legislate under the Full Faith & Credit Clause is or should be at least as strong as its power to legislate under the Commerce Clause? – How would you argue that Congresss power to legislate under the Full Faith & Credit Clause is or should be weaker than its power under the Commerce Clause? – In what way is the Full Faith & Credit Clause more like the Section 5 of the 14 th Amendment? In what way is it more like the Commerce Clause? – Is Kramer correct that DOMA means that no divorce decree, property settlement, or adoption is safe?

14. Rensberger – How does Rensbergers analysis affect the discussion in the prior class of the effect of a declaratory judgment in Texas that a same-sex coupled married in Massachusetts is not validly married? – Is Rensberger correct that the Interstate Child Support Act shows that Congress can create exceptions to states obligations to accord full faith and credit to judgments from other states?