Conflicts of Law Outline



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Traditional Rules: Marriage is valid everywhere if the requirements of the marriage law in the state where contract of marriage takes place are complied with

  1. First RST: §132 – Marriage valid in the place of celebration may be invalid depending on the law of the domicile. Wanted to eliminate disparity in treatment of husband/wife

    1. Beale: Situs state always had power to apply its own law but it deferred to the state of domicile on matters of succession/marital rights

  2. Second RST: §283 – Marriage which satisfies the requirements of the state where contracted will be recognized as valid everywhere unless it violates the public policy of another state which had the MSR to the spouse and marriage at the time of marriage

    1. Revision to modern understandings of women’s competency

    2. Person will not have a sufficient relationship to a place to warrant holding that as his domicile unless he is there for a time at least (not on his way there)

    3. Person doesn’t usually acquire a domicile of choice b any act done under legal or physical compulsion (prisoner in jail)

  • 28 U.S.C. §1786: “Congress can by general laws, prescribe the manner in which acts, records and proceedings, shall be proved and the effect thereof”

    1. Seems like Congress has the power to decide what effect, if any, there is, BUT if it’s the “manner of the effect” – then has to give it an effect, but just can describe what kind

    2. OR “General laws” – Maybe it can’t just be a type of marriage licenses, has to be all marriage licenses, so picking and choosing what kinds of cases is unconstitutional (this is being too particularized)

  • 28 U.S.C. §1738(c): No state shall be required to give effect to a public act of another state respecting a same-sex relationship that is treated as marriage under the laws of another state

    1. No traditional violation of FF&C for F2 to not recognize same-sex marriage certificate from F1 - F2 has always had the power to assess the legitimacy of marriage in F1, and could ignore marriages they considered inacceptable

      1. Ex: Interracial, polygamous, between first cousins, etc.

  • Congress allegedly wanted states to deliberate on same-sex marriage issue, free from the threat of federal constitutional compulsion of the FF&CC, so under DOMA Congress used federal power to ensure FF&C didn’t spread the Hawaii decision

    1. E. Holder’s letter to Boehner: Classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional

  • Divorce is typically a court-adjudicated proceeding because state is involved in a way that it’s not with respect to marriage – validity of marriage is a choice of law question, but divorce is considered a judgment subject to FF&C guarantees

    1. Williams v. NC: When a court of one state alters the marital statutes by granting them a divorce, cannot say that the decree shouldn’t be excepted from the FF&C just because the enforcement or recognition in another state would conflict with the policy of the latter (Under DOMA marriages & divorces of same-sex couples get NO FF&C)

  • Recognition v. Enforcement: Difference between whether judgment is entitled to any recognition in F2 AND whether that judgment should be treated the same in F2 as it would be by a F1 court

    1. 28 USC §1738: “Judicial proceedings” – seems to include all decrees

    2. Historically, money judgments were enforceable at law but equitable relief, like injunctions or garnishment, were thought to be territorially limited

      1. Equity engages state sovereignty– more of an invasion of your autonomy by state than for remedies at law (damages), or alternatively, equity judgments may have been considered inherently modifiable, so they were never final enough for FF&C

      2. After Erie, federal courts are supposed to use the enforcement regime of the state in which the court sits, which is strange because this then gives state laws a say in foreign affairs

        1. Don’t want to give states discretion to decide foreign policy (and don’t want 50 different approaches) – no supremacy clause application because no federal law on the issue


        1. In the Modern Era, under Baker, a final judgment in one state, if rendered by a court with authority over the subject matter and persons, is to be recognized everywhere, but enforcement questions don’t travel with sister state judgment as preclusive effects do – remain subject to control of forum law




          1. Step 1: Have a valid judgment entered in F1 (have both PJ and SMJ)

          2. Step 2: Second state recognizes the first state’s judgment

          3. Step 3: Then F2 forum decides how to enforce this F1 judgment

            1. Don’t have to adopt the time/manner/mechanisms for enforcement

            2. Enforcement is a matter of remedy (offensive), but recognition is a way to preclude additional litigation on the same issue (defensive)

          4. FF&CC doesn’t require F2 to adopt enforcement mechanisms of F1, or to create a remedy that doesn’t already exist in F2, but if they are available, F2 has to recognize the judgment, and employ available remedies if judgment is otherwise enforceable

          5. Ex: Legal money judgments were enforceable (like Fauntleroy), but equitable relief, like judgments was thought to be territorially limited

          6. Ex: What about damages cap in MD but not in DC? Not a fundamental exception to FF&C so still have to recognize the higher F1 damage award than cap allows in F2

        1. Baker v. GM: GM employee, bad retirement, settled a deal in Michigan, claim that he wouldn’t testify against them again, but testified in a case in Missouri, GM asked for an injunction to stop his testimony

          1. Holding: Other states have to give FF&C to a final judgment in one state, if rendered by a court with SMJ and PJ authority under the judgment, but Michigan has no authority to command obedience elsewhere on a matter the Michigan court has no authority to resolve

            1. Michigan has no authority to control courts elsewhere by preluding them from determining what evidence is relevant in their courts – Michigan can’t shield a witness from another state’s subpoena power

          2. Reasoning: No public policy exceptions to judgments – SC’s decisions “support no roaming public policy exception to FF&C” (still dicta)

            1. Equity decrees for paying money are considered equivalent to judgments at law entitled to nationwide recognition – no FF&C law/equity distinction

            2. FF&C doesn’t mean that F2 states have to adopt time/manner/mechanisms for enforcing judgments from F1, plus the consent decree stipulated that if another court ordered him to testify, it wouldn’t violate order – so he wasn’t

          3. Scalia (concurring): Enforcement measures don’t travel with sister state judgments like preclusive effects do. GM asked the Missouri court to enforce the Michigan injunction – it wasn’t obligated to do that –rule of evidence, not jurisdiction

          4. Kennedy/O’Connor/Thomas (concurring): Look first at the judgment’s effect in the issuing court state – don’t have to look at effects of FF&C exceptions because the first step shows that issuing state wouldn’t give the judgment preclusive effect because it was modifiable






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