3007 2013S

AMERICAN CONFLICTS LAW: CASES AND
MATERIALS
Fifth Edition
2013-14 Supplement
ROBERT L. FELIX
James P. Mozingo III Professor Emeritus of Law
University of South Carolina
RALPH U. WHITTEN
Senator Allen A. Sekt Professor of Law
Creighton University
ii
LexisNexis Law School Publishing

Advisory Board
Paul Caron
Charles Hartsock Professor of Law
University of Cincinnati College of Law
Olympia Duhart
Professor of Law and Director of Lawyering Skills & Values Program
Nova Southeastern University, Shepard Broad Law School
Samuel Estreicher
Dwight D. Opperman Professor of Law
Director, Center for Labor and Employment Law
NYU School of Law
Steven I. Friedland
Professor of Law and Senior Scholar
Elon University School of Law
Joan Heminway
College of Law Distinguished Professor of Law
University of Tennessee College of Law
Edward Imwinkelried
Edward L. Barrett, Jr. Professor of Law
UC Davis School of Law
Paul Marcus
Haynes Professor of Law
William and Mary Law School
John Sprankling
Distinguished Professor of Law
McGeorge School of Law
Melissa Weresh
Director of Legal Writing and Professor of Law
Drake University Law School
iii
This publication is designed to provide accurate and authoritative information in regard to the
subject matter covered. It is sold with the understanding that the publisher is not engaged in
rendering legal, accounting, or other professional services. If legal advice or other expert assistance
is required, the services of a competent professional should be sought.
LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties Inc,
used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.
Copyright 2013 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All Rights
Reserved.
No copyright is claimed in the text of statutes, regulations, and excerpts from court opinions quoted
within this work. Permission to copy material exceeding fair use, 17 U.S.C. 107, may be licensed
for a fee of 25 per page per copy from the Copyright Clearance Center, 222 Rosewood Drive,
Danvers, Mass. 01923, telephone (978) 750-8400.
NOTE TO USERS
To ensure that you are using the latest materials available in this area, please be sure
to periodically check the LexisNexis Law School website for downloadable updates
and supplements at www.lexisnexis.com/lawschool.
Editorial Offices
121 Chanlon Road, New Providence, NJ 07974
201 Mission St., San Francisco, CA 94105-1831 (415) 908-3200
www.lexisnexis.com
(Pub. 3007)
iv
PREFACE
This Supplement is intended to update teachers and students on the latest cases and
literature pertinent to the course in Conflict of Laws. Since the publication of the Fifth Edition
of the casebook in 2010, there have been no major developments in the general area of choice of
law that would constitute a fundamental alteration in the direction of the AConflicts Revolution@
that constitutes the main subject matter of the casebook. Chapter 4 of this supplement adds a
discussion in section B (The New York Experience and Approach) to the New York Court of
Appeals latest attempt to explicate that states conflict approach in Edwards v. Erie Coach Lines
Co., 952 N.E.2d 1033 (N.Y. 2011). In addition, there have been major case law developments in
the Erie doctrine that is the subject of Chapter 8 and in the area of constitutional limits on
personal jurisdiction, which is the main focus of Chapter 10. Where appropriate, citation to the
new edition of the authors treatise, ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN
CONFLICTS LAW (6th ed. 2011), have been added.
In the Erie doctrine, the Supreme Courts decision in Shady Grove Orthopedic
Associates, P.A. v. Allstate Insurance Co., 130 S. Ct. 1431 (2010), reprinted in Chapter 8 of this
supplement has created even more uncertainty than existed before on the obligations of federal
courts to apply state law in diversity actions. Shady Grove leaves one wondering whether the
several opinions reflect a workable view of the Erie doctrine. In the area of personal jurisdiction,
the Supreme Courts decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846 (2011) and McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), decided at the
end of the October term 2010 will excite new discussion about the due process standards
governing the permissible reach of state and federal long-arm jurisdiction. The cases are
reprinted in Chapter 10. Neither case provides much clarification of the operation of the
doctrines of general or specific jurisdiction, but McIntyre, which follows the all too frequent
pattern of the Courts procedural cases, has no majority opinion and will surely create further
confusion among the lower federal and state courts.
Robert L. Felix
Ralph U. Whitten
June 2013
Table of Contents
Page
Preface ........................................................................................................................................... iii
_____________
CHAPTER 1: INTRODUCTION .............................................................................................................1
B. The Elements of the Subject
1
6. International Conflict of Laws
1
C. A Brief History ..........................................................................................................................1
4. The First Restatement: Beale and the Critics .......................................................................1
CHAPTER 2: CHOICE OF LAW: SOME GENERAL PROBLEMS..............................................................3
A. Selecting a Choice-of-Law Theory ............................................................................................3
2. Curries Governmental Interest Analysis.............................................................................3
4. Leflars Choice-Influencing Considerations ........................................................................4
5. The AMost Significant Relationship@ Approach...................................................................4
B. Classifying Rules as Substantive or Procedural.........................................................................5
2. Burden of Proof ...................................................................................................................5
3. Statutes of Frauds .................................................................................................................5
4. Statutes of Limitations
5
5. Other Issues
7
C. Characterizing the Issues ...........................................................................................................8
E. Using Dpeage .........................................................................................................................9
F. Coping with Renvoi ...................................................................................................................9
G. Ascertaining a Persons Domicile
10
H. Proving Foreign Law ...............................................................................................................10
I. Dealing with Extraterritorial Conduct in Criminal Cases ........................................................11
CHAPTER 3: CHOICE OF LAW: SOME CONSTITUTIONAL PROBLEMS ...............................................13
A. The Full Faith and Credit and Due Process Clauses ................................................................13
1. The Full Faith and Credit Clause
13
13
2. The Due Process Clause
13
3. Convergence
B. Other Constitutional Clauses
14
2. The Privileges and Immunities Clause
14
3. The Commerce Clause
15
CHAPTER 4: CHOICE OF LAW: TORTS ............................................................................................17
A. The Traditional Rules Method
17
B. The New York Experience and Approach ...............................................................................17
C. Second Restatement: The Most Significant Relationship ........................................................19
D. Leflars Choice-Influencing Considerations ............................................................................19
vi
Table of Contents
Page
E. Other Approaches ....................................................................................................................20
2. Eclectic Solutions: Combining Choice-of-Law Approaches .............................................20
3. Theories of Selected Commentators
21
a. Tort Policies and Choice-of-Law Policies
21
4. Approaches Used in Selected Foreign Countries...............................................................21
b. Canada: Rediscovery of the Lex Loci Delicti ..............................................................21
F. Special Problems: Mass Torts ..................................................................................................21
2. Class Actions .....................................................................................................................21
CHAPTER 5: CHOICE OF LAW: CONTRACTS....................................................................................23
A. Traditional Approaches ............................................................................................................23
1. Alternative Reference
23
B. Some Modern Approaches .......................................................................................................23
1. When the Contract Does Not Contain a Choice-of-Law Clause .......................................23
2. When the Contract Contains a Choice-of-Law Clause ......................................................24
C. Some Special Problems............................................................................................................26
1. Statutes of Frauds
26
2. The Uniform Commercial Code ........................................................................................26
CHAPTER 6: CHOICE OF LAW: PROPERTY, TRUSTS, AND ESTATES .................................................29
A. Land .........................................................................................................................................29
B. Personalty.................................................................................................................................29
D. Wills and Inheritance ...............................................................................................................30
E. Decedents Estates ...................................................................................................................31
CHAPTER 7: FAMILY LAW .............................................................................................................33
A. Marriage and Its Termination ..................................................................................................33
1. Marriage .............................................................................................................................33
2. Divorce ...............................................................................................................................35
B. Support: Decrees/Orders ..........................................................................................................36
1. ADivisible Divorce@ ............................................................................................................36
2. Support-Generally ..............................................................................................................37
37
b. Uniform Reciprocal Enforcement of Support Act
c. Uniform Interstate Family Support Act
37
C. Custody ....................................................................................................................................37
1. The Uniform Child Custody Jurisdiction Enforcement Act
38
38
2. Full Faith and Credit to Child Custody Determinations
3. International Child Abduction
38
4. Adoption ............................................................................................................................39
D. Martial Property .......................................................................................................................41
2. Party Autonomy In Marital Property Regimes ..................................................................41
vii
Table of Contents
Page
a. Unilateral Party Autonomy
41
b. Bilateral Party Choice ..................................................................................................41
CHAPTER 8: VERTICAL CHOICE OF LAW ........................................................................................43
43
A. The Swift Doctrine
B. The Erie Doctrine
43
Shady Grove Orthopedic Associations v. Allstate Insurance Co.
45
C. Horizontal Choice of Law Under Erie
84
D. Ascertaining State Law
86
86
E. Federal Common Law After Erie
CHAPTER 9: JUDGMENTS ...............................................................................................................89
89
A. Review of Basic Preclusion Rules
B. Enforcement of State Judgments .............................................................................................89
1. The Full Faith and Credit Implementing Statute ...............................................................89
2. Basic Policies and Exceptions ...........................................................................................89
a. Basic Policies ...............................................................................................................89
b. Exceptions and Potential Exceptions to the Basic Policies .........................................90
(1) General and Special Public Policy Exceptions
90
(2) Lack of Personal Jurisdiction ..............................................................................90
(4) Fraud ...................................................................................................................91
(5) Statutes of Limitations ........................................................................................91
(6) Judgments Based on Penal Laws or Governmental Claims................................91
(7) Administrative Adjudications .............................................................................92
(8) Nonfinal and Modifiable Judgments ...................................................................94
C. Enforcement of Federal Judgments .........................................................................................94
D. Enforcement of Foreign Nation Judgments .............................................................................94
CHAPTER 10: PERSONAL JURISDICTION ..........................................................................................99
B. Fourteenth Amendment Restrictions on State-Court Jurisdiction ...........................................99
2. Development of Modern Restrictions on State-Court Jurisdiction ....................................99
a. Status of Traditional Territorial Rules After International Shoe .................................99
b. General and Specific Jurisdiction ..............................................................................100
(1) General Jurisdiction .............................................................................................100
Goodyear Dunlop Tires Operations, S.A. v. Brown ............................................100
(2) Specific Jurisdiction .............................................................................................107
McIntyre Machinery, LTD. v. Nicastro ................................................................108
(3) Convergence? .......................................................................................................124
c. Amenability to Process in Federal Court ...................................................................125
C. Grounds For Declining Jurisdiction .......................................................................................126
1. Forum Selection Clauses..................................................................................................126
viii
Table of Contents
Page
2. Forum Non Conveniens ...................................................................................................127
3. Penal and Governmental Claims ......................................................................................129
4. Dissimilarity and Public Policy
129
5. Local Actions ...................................................................................................................129
6. Comity? ...........................................................................................................................130
D. Injunctions Against Extrastate Actions ..................................................................................130
ix
Chapter 1
INTRODUCTION
B. THE ELEMENTS OF THE SUBJECT
6. International Conflict of Laws
[The quotation on pages 4 - 5, with slight stylistic modifications, now appears in the
following source.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW 6, at 10 - 11 (6th ed.
2011).
C. A BRIEF HISTORY
4. The First Restatement: Beale and the Critics
[Insert at the end of Note 4 on page 14.]
See also Lea Brilmayer, Choice of Law Theory and the Metaphysics of the Stand-Alone
Trigger, 95 IOWA L. REV. 1125 (2010) (arguing that the first Restatement was not rejected
because of legal realism, but because judges found the first Restatements single-factor results
inequitable).
[Insert after Note 5 on page 14.]
6. For recent articles of general interest and relevance to Conflicts, including comparative
conflict-of-laws issues, see Clay H. Kaminsky, The Rome II Regulation: A Comparative
Perspective on Federalizing Choice of Law, 85 TUL. L. REV. 55 (2010); Alex Mills, Federalism
in the European Union and the United States: Subsidiarity, Private Law, and the Conflict of
Laws, 32 U. PA J. INTL L. 369 (2010); Markus A. Petsche, International Commercial Arbitration
and the Transformation of the Conflict of Laws Theory, 18 MICH. ST. L.J. 453 (2010); King Fung
Tsang, Forum Shopping in European Insurance Litigation: A Comparison Between
Jurisdictional Rules in the European Union and the United States, 32 LOY. L.A. INTL & COMP.
L. REV. 239 (2010); Christopher A. Whytock, Transnational Judicial Governance, 2 ST. JOHNS
J. INTL & COMP. L. 55 (2012); Christopher A. Whytock, The Evolving Forum Shopping System,
96 CORNELL L. REV. 481 (2011); Christopher A. Whytock, Myth of Mess? International Choice
of Law in Action, 84 N.Y. U. L. REV. 719 (2009); Christopher A. Whytock, Domestic courts and
Global Governance, 84 TUL. L. REV. 67 (2009).
INTRODUCTION
CH. 1
7. For the latest version of Dean Symeonides choice-of-law survey, which is cited
throughout the casebook, see Symeon C. Symeonides, Choice of Law in the American Courts in
2012: Twenty-Sixth Annual Survey, 61 AM. J. COMP. L. 217 (2013).
*****
Chapter 2
CHOICE OF LAW: SOME GENERAL PROBLEMS
[Insert at the end of the last paragraph before Section A on page 16.]
The latest version of Dean Symeonides survey of choice of law, cited throughout this
chapter, reveals no change in the count of the states following the different choice-of-law
methods examined in the chapter. See Symeon C. Symeonides, Choice of Law in the American
Courts in 2012: Twenty-Sixth Annual Survey, 61 AM. J. COMP. L. 217, 278-79 (2013). See also
Symeon C. Symeonides, Private International Law Bibliography 2011: U.S. and Foreign
Sources in English, 60 Am. J. Comp. L. 369 (2012); Symeon C. Symeonides, Private
International Law Bibliography 2009-10: U.S. and Foreign Sources in English, 59 AM. J. COMP.
L. 395 (2011).
A. SELECTING A CHOICE-OF-LAW THEORY
[The citation at the end of the carryover paragraph on page 17 to reading on Leflars choiceinfluencing considerations should now be to the following source.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW ' 58 (6th ed. 2011).
2. Curries Governmental Interest Analysis
[Insert at the end of Note 3(b) on page 34.]
See generally, Gary J. Simson, Choice of Law After the Currie Revolution: What Role for the
Needs of the Interstate and International Systems, 63 MERCER L. REV. 715 (2012).
[Insert at the end of Note 3(f) on page 35.]
See also CRS Recovery, Inc. v. Laxton, 600 F.3d 1138 (9th Cir. 2010) (suit for conversion of
an internet domain name by a Virginia domicillary, who was the first registrant of the name,
against a California domicillary, a subsequent registrant, in California; under Virginia law, a
domain name is a contract right that cannot be converted, while the name can be converted in
California; court held the case involved a false conflict, because California had a deterrent
interest because defendant was from California and tortious conduct occurred in California,
while Virginia had no policy of protecting its plaintiff); Cornett v. Johnson & Johnson, 48 A.3d
1041 (N.J. 2012) (no conflict of laws existed between New Jersey and Kentucky statutes of
limitations so as to preclude application of Kentucky statute in products liability action; although
both statutes provided different periods after accrual of claim in which to file action, discovery
rule applied to claims under laws of both states and difference in time limits did not implicate
fundamental public policy; action barred).
3
CH. 2
4. Leflars Choice-Influencing Considerations

[Substitute reading in the following source for the quoted insert on pages 37 - 40.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW ' 58, at 194 - 204 (6th
ed. 2011).
5. The AMost Significant Relationship@ Approach
For the latest version of Dean Symeonides survey, which finds no change in the number of
states following the RESTATEMENT (SECOND), see Symeon C. Syeonides, Choice of Law in the
American Courts in 2012: Twenty-Sixth Annual Survey, 61 AM. J. COMP. L. 217, 278 -79 (2013);
see also William D. Cutler, Note & Comment, Texas Conflicts Law: The Struggle to Grasp the
Most Significant Relationship Test, 65 BAYLOR L. REV. 355 (2013).
Note that the RESTATEMENT (SECOND) still employs the place of the injury as part of its
analysisfor example, as a Acontact@ in section 145(2)(a) and as a presumptive jurisdiction
selecting rule in a number of sections such as section 146. Will it always be easy to determine
where the injury occurred? For example, where does the injury occur in a slow developing
disease? Compare Wyeth v. Rowatt, 244 P.3d 765 (Nev. 2010) (place of the injury is the state
where the slow-developing disease is first ascertainable because until such a disease is detected
there is no legally compensable injury) with Robinson v. McNeil Consumer Healthcare, 615 F.3d
861 (7th Cir. 2010) (there is an ambiguity in the concept of Ainjury@ when a disease has a latency
period; if the place where the first symptoms appear were treated as the place of the injury, it
might spur forum shopping when a victim realizes he has a disease, but the first symptoms have
not yet appeared; thus the place where a continuing injury is first inflicted should govern, here
Virginia). Cf. Am. Guar. & Liab. Ins. Co. v. U.S. Fidelity & Guar. Co., 668 F.3d 991 (8th Cir.
2012) (under Missouris conflicts analysis (which is the RESTATEMENT (SECOND)), Missouri law
rather than Washington law applied to an excess insurers bad faith refusal to settle claim against
the primary insurer; even though the insured operated its trucking business in Washington before
its dissolution and the primary insurance policy was issued to the insured there, the injury to the
insured took place in Missouri when a verdict was entered against it there in a wrongful death
action).
B.
CLASSIFYING RULES AS SUBSTANTIVE OR PROCEDURAL
B. CLASSIFYING RULES AS SUBSTANTIVE OR

PROCEDURAL
2. Burden of Proof
[The citation on page 75 at the beginning of the text after the quote should now be to the
following source.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW ' 65, at 226 (6th ed.
2011).
[The citation on page 79 at the end of Note 2 should now be to the following source.]
2011).
4. Statutes of Limitations
As observed in Note 1 on page 63 of the casebook, in 2008 New Jersey adopted the approach
of the RESTATEMENT (SECOND) in torts. In 2012, the Court then confronted a potential conflict
between the statute of limitations periods of New Jersey and Kentucky in a products liability
action. In Cornett v. Johnson & Johnson, 48 A.3d 1041 (2012), the New Jersey Supreme Court
interpreted Gantes as holding that when New Jersey and another state have conflicting statutes of
limitation, the New Jersey courts apply the same test that they would apply to select the
applicable substantive law. This would seem to mean that the court should apply revised 145 of
the RESTATEMENT (SECOND applied in the Deloach on page 103 of the casebook. Instead, the
Court held that choice of law is not an issue unless there is a real conflict between the laws of
two jurisdictions. The court determined that there was no conflict of laws between Kentucky
and New Jersey law, because both states applied the discovery rule to products liability cases,
and even though they had different rules for when a complaint had to file after accrual, the
differences did not create a true conflict because the difference was not offensive or repugnant to
the public policy of New Jersey. Therefore, the court applied the Kentucky statute, which barred
the claim. Is this the way you understand the RESTATEMENT (SECOND) is to be applied? Renew
this question after covering Deloach.
CH. 2

See also Waterfield v. Meredith Corp., 20 A.3d 865 (N.H. 2011) (New Hampshire trial court
holds that Connecticuts limitations period barred the plaintiffs defamation action because the
plaintiff was not a resident of New Hampshire at the time he sued and had maintained a New
Hampshire address solely for purposes of filing suit because the statute of limitations of all other
potential jurisdictions had run and also because his claim did not arise in the state; the Supreme
Court of New Hampshire reversed, stating that the relevant time for determining residency was
when the claim arose, not when the suit was filed. The court stated that if the plaintiff was a
resident at the time the claim arose, no choice-of-law analysis need be performed and the New
Hampshire limitations period would apply; however, if the plaintiff was not a New Hampshire
resident when the claim arose, the court should determine a choice-of-law analysis left open in a
prior case under Leflars choice-influencing considerations to determine which states statute of
limitations to apply).
[The citation at the end of Note 2 on page 100 should now be to the following source.]
Whitney v. Guys, Inc., 700 F.3d 1118 (8th Cir. 2012) (Delaware three-year statute of
limitations applied instead of Minnesota six-year statute; Minnesotas adoption of the uniform
act demonstrates that Minnesota does not have a strong governmental interest in applying its own
statute and better law factor of Minnesota conflicts analysis does not militate otherwise);
Vicknair v. Phelps Dodge Indus., Inc., 794 N.W.2d 746 (N.D. 2011) (Aescape clause@ of Uniform
Act provides that if the limitations period of another state applies but is substantially different
from the limitation period of North Dakota and has not afforded a fair opportunity to sue on or
imposes an unfair burden in defending against the claim, the limitation period of North Dakota
applies; party urging the application of the escape clause, here the plaintiff, bears the burden of
establishing the criteria for its application, and the plaintiffs did not present any evidence
showing that they had been deprived of a fair opportunity to sue upon their claims by the
limitations periods of the other relevant states).
See also (Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010) (California
borrowing statute applicable to borrow Taiwan statute of repose; court rejects plaintiffs
argument that borrowing statute was inapplicable because claim Aarose@ in California even
though it Aaccrued@ in Taiwan); Willey v. Bracken, 244 S.E.2d 714 (W. Va. 2010) (mere fact that
an injury occurred in another state will not automatically produce application of West Virginia
borrowing statute where additional injury occurs in West Virginia). Cf. Muto v. CBS Corp., 668
B.
CLASSIFYING RULES AS SUBSTANTIVE OR PROCEDURAL
F.3d 53 (2d Cir. 2012) (in federal question case, New York borrowing statute employed to select
Pennsylvania statute of limitations rather than a federal limitations period).
[The citation at the end of Note 2 on page 109 should now be to the following source.]
ed. 2011).
[Add at the end of Note 4(c) on page 110.]
(d) In Harodite Indus., Inc. v. Warren Elec. Corp., 24 A.3d 514 (R.I. 2011), the Rhode Island
Supreme Court applying what it called an Ainterest weighing@ approach, which involved attention
to Leflars choice-influencing considerations as well as the tort contacts from the RESTATEMENT
(SECOND) ' 145(2), affirmed a trial courts application of the ten-year Rhode Island limitations
period, concluding that Rhode Island had the most significant relationship to the Aallegations@ in
the complaint.
(e) In Ennega v. Starns, 677 F.3d 766 (7th Cir. 2012), the court noted that the Illinois courts
apply the most significant contacts analysis of the RESTATEMENT (SECOND), but then stated that
142 created a strong presumption that a state will apply its own statute of limiations. It then
stated that Illinois courts apply the Illinois statute of limitations because statutes of limitation are
procedural. This is not an appropriate analysis under 142, is it?
(f) The question of which states statute of limitations the forum should apply should be
carefully distinguished from the question of what effect a judgment of dismissal on statute of
limitations grounds should receive. Because traditionally statutes of limitations were classified
as Aprocedural@ for conflict-of-laws purposes, a judgment of dismissal on limitations grounds in
one state would not be considered Aon the merits,@ or claim preclusive for purposes of a suit in
another state that had a longer statute. This is changing, as courts realize that statutes of
limitations can be supported by Asubstantive@ as well as Aprocedural@ policies. See, e.g., Rick v.
Wyeth, 662 F.3d 1067 (8th Cir. 2011) (under Full Faith and Credit Implementing Statute, the
preclusive effect of a judgment of dismissal is determined by the law of the state in which the
judgment of dismissal occurred; under New York claim preclusion law, a dismissal on statute of
limitations grounds was claim preclusive and prevented a second action in a federal court in
Minnesota).
5. Other Issues
See also Travelers Cas. & Sur. Co. v. Ins. Co. of N.A., 609 F.3d 143 (2010) (choice-of-law
clause in insurance contract specified New York law as applicable; however, if rate of
prejudgment interest is procedural, Pennsylvania law as the law of the forum would apply; rate
held to be substantive and controlled by the choice-of-law clause); FCS Advisors, Inc. v. Fair
CH. 2
Fin. Co., Inc., 605 F.3d 144 (2d Cir. 2010) (in diversity action, federal rate for post-judgment
interest rather than state rate controls; parties may contractually agree to a different rate if their
intent to do so is clear; however, general choice-of-law clause does not alter the application of
the federal rate); Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126 (Tex. 2010) (Texas
statute shielding successor company of asbestos manufacturer applied to foreign corporation;
held that choice-of-law rules are procedural and subject to change by courts or legislatures).
Do general definitions help? See Scrushy v. Tucker, 70 So.3d 289 (Ala. 2011) (matters are
sometimes said to be procedural if they concern methods of presenting to a court the operative
facts upon which legal relations depend; whereas substantive matters are those which concern
the legal effect of those facts after they have been established; under this standard, demand
requirements of Delaware shareholder derivative rule and whether to allow amendment to
comply with pleading requirement held to be substantive under some circumstances; however,
court also holds Delaware law should be applied to amendment right whether it is substantive or
procedural, because right was inextricably intertwined with the substantive right to proceed
derivatively; see id. at 299).
6. See generally Karen Petroski, Statutory Genres: Substance, Procedure, Jurisdiction, 44
LOY. CHI. L.J. 189 (2012) (discussing several characterization problems, including substance
versus procedure, as part of the process of interpretation).
C. CHARACTERIZING THE ISSUES
[Substitute the following reading for the indented quote on page 117.]
See also Mid-Continent Casualty Co. v. Eland Energy, Inc., 709 F.3d 515 (5th Cir. 2013) (on
issue of breach of good faith and fair dealing, court classifies issue as one of tort rather than
contract and applies 145 of RESTATEMENT (SECOND)); State Farm Mut. Auto. Ins. Co. v. Koshy,
995 A.2d 651 (Maine 2010) (accident and action in Maine in automobile rented in New
Hampshire; court, applying RESTATEMENT (SECOND), selects Maine law as applicable to the tort
issues and New Hampshire law as applicable to the contract issues in the case).
F.
COPING WITH RENVOI
E. USING DPEAGE
[Substitute the following citation for the one toward the end of the introductory paragraph on
page 130.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW '' 69 - 70 (6th ed.
2011).
[Substitute the following citation for the one in Note 1(a) on page 136 before the citation to
the Richards case.]
F. COPING WITH RENVOI
[Substitute the following citation for the one at the end of the introductory paragraph on page
139.]
2011).
[Substitute the following citation for the one in Note 1(b) on page 148.]
[Insert at the end of Note 1(e) on page 150.]
See also State Farm Mut. Auto. Ins. Co. v. Patterson, 7 A.3d 454 (Del. 2010) (Delaware
insurance statute provided for uninsured motorist benefits by insured parties who Aare legally
entitled to recover damages@ from uninsured vehicles; Delaware insured was injured in accident
in New Jersey by a New Jersey driver whose insurer denied plaintiffs claim; plaintiff then filed
claim with her own insurer, State Farm, who denied claim on grounds that plaintiff was not
legally entitled to recover damages under New Jersey law; court applies RESTATEMENT
(SECOND) analysis in tort to determine whether plaintiff legally entitled to recover damages, even
though case was contract case between insured and insurer; court concludes that Delaware law
applied and allowed recovery; dissenters applied more elaborate RESTATEMENT (SECOND)
analysis and concluded that New Jersey law should be applied to determine what insured was
legally entitled to recover); cf. Baker v. St. Paul Travelers Ins. Co., 595 F.3d 391(1st Cir. 2010)
(law of state where policy issued governed; that state was also the state of the accident, but the
driver of the car was an employee of the insured and lived in another state, where the car was
10
CH. 2
also garaged); Nodak Mut. Ins. Co. v. McDowell, 784 N.W.2d 483 (S.D. 2010) (law of state
where policy delivered applied).
G. ASCERTAINING A PERSONS DOMICILE
[Substitute the following reading for the material in the indented quotes in Note 3 on page
163 and Note 4 on page 164.]
ROBERT L. LEFLAR & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW '' 73 at 253, 75 - 77
(6th ed. 2011).
In Arabie v. CITGO Petrol. Corp., 89 So.3d 307 (La. 2012), the Louisiana Supreme Court
determined that a Delaware Corporation with its headquarters in Houston, Texas, but which
operated a refinery where an oil spill occurred in Louisiana, was domiciled in Louisiana for
purposes of Louisianas statutory choice-of-law provision governing delictual or quasi delictual
obligations. Evaluating the contacts between the potentially concerned states and the parties and
the events, plus relevant policies, the court concluded that it was appropriate to consider the
corporation domiciled in Louisiana for purposes of determining whether an award of punitive
damages was appropriate. The domicile of the corporation in Louisiana meant that such
damages could not be awarded. Is this case an example of the evaluative process described in
Note 5, or is it an example of manipulation of the domicile concept?
H. PROVING FOREIGN LAW
When foreign law is to be applied, are there preferred and unpreferred methods of proving it?
In Bodum USA, Inc. v. La Cafetire, Inc., 621 F.3d 624 (7th Cir. 2010), the parties agreed that
French law should be applied, and both presented affidavits of experts on the law. On appeal,
Judge Easterbrook offered the opinion that this approach was both expensive and less reliable
than published sources that had less of an adversary cast. See id. at 629. Relying on the latter
kinds of sources, he affirmed the district court. Judge Posner concurred, agreeing with Judge
Easterbrook about the Aunsound@ practice of determining the content of foreign law by the
testimony or affidavits of expert witnesses. See id. at 633. However, Judge Wood, also
concurring, disagreed with Judges Posner and Easterbrook. In part, Judge Wood pointed to Rule
44.1, which does not establish any preference for the sources by which foreign law is proved. In
part, also, Judge Wood disagreed with Judges Easterbrook and Posner about the efficiency and
accuracy of relying on experts. Whom do you agree with?
I.
DEALING WITH EXTRATERRITORIAL CONDUCT
11

5A. If a trial court makes a choice-of-law decision but does not give its reasons for selecting
the law it picked, should an appellate court reverse on that basis alone, or affirm if the trial
courts conclusion is correct. See Idean v. Burlington Res. Oil & Gas Co., 233 P.3d 362 (N.
Mex. 2010) (Although it is desirable for the lower court to detail the results of its choice-of-law
analysis, it is not indispensable, and the judgment will be affirmed if it is correct even if the court
reached the correct result for the wrong reason.).
[Substitute the following citation for the one at the beginning of Note 6 on page 171.]
2011).[Add the following at the end of Note 6 on page 171.]
See also Roger J. Michalski, Pleading and Proving Foreign Law in the Age of Plausibility
Pleading, 59 BUFFALO L. REV. 1207 (2011) (discussing the effect of the U.S. Supreme Courts
recent decisions reinterpreting the pleading standards of Fed. R. Civ. P. 8 to require that the
plaintiff plead a claim for relief in a way that makes its existence more than merely possible, but
Aplausible@); Matthew J. Wilson, Demystifying the Determination of Foreign Law in U.S. Courts:
Opening the Door to a Greater Global Understanding, 46 WAKE FOREST L. REV. 887 (2011).
I. DEALING WITH EXTRATERRITORIAL CONDUCT
IN CRIMINAL CASES
See also Hawaii v. Torres, 252 P.3d 1229 (Haw. 2011) (where state seeks to prosecute a
defendant in a Hawaii state court, any evidence upon which the prosecution seeks to rely must
have been obtained in a manner that comports with the Hawaii Constitution and applicable case
law; prior search of automobile by federal agents on military base satisfied Bridges because of
sign at entrance to military base stating that persons who drove on base consented to searches of
their automobiles and could turn around and leave base if they did not wish autos to be
searched).
See also Major v. Commonwealth of Kentucky, 275 S.W.3d 706 (Ky. 2009) (in husbands
trial for murder of wife in Kentucky, issue was admissibility over privilege objection of taped
conversation between husband in Massachusetts and father in Nova Scotia intercepted with
permission of father in Nova Scotia; Kentucky follows RESTATEMENT (SECOND) ' 139; under
that section, conversation was governed by Kentucky law, which made conversation admissible,
rather than Massachusetts law, which would make it inadmissible; Massachusetts, in any event,
12
CH. 2
did not have more significant relationship than Kentucky); State v. Ruggiero, 35 A.3d 616 (N.H.
2011) (court need not decide whether to adopt the exclusionary rule approach or the conflict-oflaws approach, because even if New Hampshire wiretap statute is applicable to an out-of-state
telephone call, language of the statute indicates it is not applicable here). For a general
discussion of conflict-of-laws problems dealing with extraterritorial conduct in criminal cases,
see ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW '' 85 - 91 (6th ed.
2011).
*****
Chapter 3
CHOICE OF LAW: SOME CONSTITUTIONAL PROBLEMS
[Insert the following at the end of the introductory paragraph on page 189.]
2011).
A. THE FULL FAITH AND CREDIT AND DUE PROCESS CLAUSES
1. The Full Faith and Credit Clause
[Insert at the end of the carryover Note on page 191.]
For a recent attempt to respond to the articles by Whitten, Engdahl, and Sachs and argue for a
broader interpretation of the constitutional mandate, see Charles M. Yablon, Madisons Full
Faith and Credit Clause: A Historical Analysis, 33 CARDOZO L. REV. 125 (2011); see also
Jeffrey M. Schmidt, A Historical Reassessment of Full Faith and Credit, 20 GEO. MASON L.
REV. 485 (2013) (challenging the evidentiary view of the original meaning of the Full Faith and
Credit Clause). For an examination of full faith and credit to non-judicial and non-legislative
records, see Darren A. Prum, The Full Faith and Credit Clause: Do Factual Executive
Documents Require Equivalent Treatment Between States, 23 U. FLA. J. L. & PUB. POL. 151
(2012); Elizabeth Redpath, Between Judgment and Law: Full Faith and Credit, Public Policy,
and State Records, 62 EMORY L.J. 639 (2013).
2. The Due Process Clause
[Substitute the following citation for the citation at the bottom of page 214.]
Robert L. Felix & Ralph U. Whitten, American Conflicts Law ' 102 (6th ed. 2011)
(discussing jurisdiction to tax).
3. Convergence?
6. For subsequent lower federal court applications of the Allstate test, see AT&T Mobility,
L.L.C v. A.U. Optronics Corp., 707 F.3d 1106 (9th Cir. 2013) (sellers conspiratorial conduct
was sufficiently connected to California so that it created significant contacts with California and
was not slight and casual; therefore, application of California law to the sellers conduct did not
violate due process); Whitney v. The Guys, Inc., 700 F.3d 1118 (8th Cir. 2012) (Minnesotas
choice of law rules involve a multistep analysis in which it is first determined whether the choice
13
14
CH. 3
of one states laws over another will determine the outcome of the case and, second, whether the
different states laws may be constitutionally applied to the case and, third, application of a
multifactored test (Leflars system).
[Insert at the end of Note 1(d) on page 243.]
(e) For a discussion of what the constitutional obligations are for a state to interpret the law
of sister states accurately, see William B. Sohn, Supreme Court Review of Misconstructions of
Sister State Law, 98 VA. L. REV. 1861 (2012).
David A. Linehan, Due Process Denied: The Forgotten Constitutional Limits on Choice of
Law in the Enforcement of Employee Convenants Not to Compete, 2012 UTAH L. REV. 209
(2012).
B. OTHER CONSTITUTIONAL CLAUSES
2. The Privileges and Immunities Clause
1A. In McBurney v. Young, ___ U.S. ___, 133 S. Ct. 1709 (2013), out-of-state citizens
sought records from Virginia under the Virginia Open Records law, which textually limited the
right to obtain records under the law to citizens of the state. Their requests were denied, and they
sued the appropriate state officials in federal court. The lower federal courts denied them relief,
and the U.S. Supreme Court affirmed. The Court held that the Virginia law did not violate
fundamental rights of the plaintiffs in that any effect the law had in preventing citizens of other
states from making a living was incidental to the legitimate purpose of the state to provide a
mechanism for Virginia citizens to obtain an accounting from their public officials, and the law
did not impose a significant burden on the right of noncitizens to own and transfer property in
Virginia. The Court also held that the law did not burden noncitizens access to public
proceedings given the other sources of access to the information sought by the noncitizens
provided by the state. Finally, the Court rejected the sweeping claim that the Virginia law
violated the Privileges and Immunities Clause because it denied noncitizens access to public
information on equal terms with citizens, stating that such a right was not a fundamental right of
citizenship.
B.
OTHER CONSTITUTIONAL CLAUSES
15
3. The Commerce Clause

[Substitute the following citation for the one at the end of the carryover text on page 257.]
[Insert at the end of the Note on page 257.]
In McBurney v. Young, ___ U.S. ___, 2013 WL 1788080 (2013), discussed above in
conjunction with the Privileges and Immunities Clause, the Supreme Court also held that the
limitation of the Virginia Freedom of Information Act to citizens of the state did not violate the
dormant commerce clause, because the act neither regulated not burdened interstate commerce.
It simply provided a service to local citizens that would otherwise not be available at all.
See also Midwest Title Loans, Inc. v. Mills, 593 F.3d 660 (7th Cir. 2010) (Posner, J.) (Indiana
Consumer Credit Code provided that a consumer loan between an Indiana borrower and an outof-state lender would be deemed made in Indiana, subjecting the lender to the requirement that it
obtain a license and meet other requirements; held, this violates the dormant commerce clause,
because it is an attempt to regulate activities in other states).
*****
16
CH. 3
Chapter 4
CHOICE OF LAW: TORTS
A. THE TRADITIONAL RULES METHOD
[The indented quotation on pages 259 - 60, as modified, now appears in the following
source.]
ed. 2011).
On the question of how to determine where the tort occurred, see Bullard v. M.R.A. Holdings,
Inc., 2013 Ga. LEXIS 293 (2013) (in suit for damages for wrongfully appropriating plaintiffs
likeness, place of the tort was Georgia because the videotape in question was distributed
nationwide, including in Georgia, even though the original nude picture of the plaintiff was taken
in a parking lot in Florida).
B. THE NEW YORK EXPERIENCE AND APPROACH
[Insert the following after Note 4 on page 292.]
4A.(a) In Edwards v. Erie Coach Lines Co., 952 N.E.2d 1033 (N.Y. 2011), the New York
Court of Appeals again considered a case involving the Schultz party configuration. An Ontario
bus carrying Ontario passengers collided with a tractor-trailer parked on the shoulder of a New
York highway. Some of the passengers were killed and some were injured. The tractor-trailer
driver and his employer were Pennsylvania domicillaries. The injured passengers and the
representatives of the deceased passengers filed suit in New York against the bus driver, the
drivers employer, the lessor of the bus, the tractor-trailer driver, the drivers employer, and the
companies that hired the trailer. The conflict-of-laws issue concerned a cap on non-economic
damages under Ontario law and New York law, which contained no cap. The lower New York
Courts applied the first Neumeier rule to the claims by the passengers against the Ontario
defendants (the bus driver, drivers employer, and the lessor of the bus), and this was affirmed by
the New York Court of Appeals. With regard to the Pennsylvania defendants, the case was
complicated by the fact that the parties had stipulated that the Ontario defendants were 90
percent at fault and the tractor-trailer defendants were 10 per cent at fault. This would produce
no problem if Ontario law were applied to both sets of defendants, but if New York law were
applied to the tractor-trailer defendants, they would be held liable for more than the Ontario
defendants because of the lack of a cap on non-economic damages under New York law, even
though they were stipulated to be only 10% at fault. The New York intermediate court of
appeals applied the exception to the third Neumeier rule to the claims against these defendants
17
18
CH. 4
and displaced New York law as the law of the place of the injury. The court reasoned that
although application of Ontario law would not advance the purposes of New York law, it would
not frustrate New Yorks interests either, because New York had no significant interest in
applying its law to the claims. See Butler v. Stagecoach Group, PLC, 900 N.Y.S.2d 541, 544
(N.Y.A.D. 2010). The intermediate court of appeals was obviously influenced by the fact that
the application of New York law to the tractor-trailer defendants would result in them paying
more in damages even though they were less at fault than the Ontario defendants. See id. The
New York Court of Appeals reversed this holding and held that New York law should apply to
the tractor-trailer defendants under the third Neumeier rule. In so holding, the court of appeals
observed that the tractor-trailer defendants had not asked that Pennsylvania law be applied and,
therefore, that this failure prevented them from taking advantage of the Ontario cap. ATo rule
otherwise would only encourage a kind of forum shopping.@ Edwards, 952 N.E.2d at 1044. In
addition, although the tractor-trailer defendants had argued that they were in a situation
comparable to the Franciscian Brothers in Schultz, the court of appeals disagreed, stating that
A[w]hile New York employs >interest analysis . . . the number and intensity of contacts is
relevant when considering whether to deviate from lex loci delicti under the third Neumeier
rule . . . .@ Id. The court of appeals continued:
In Schultz, New Jersey was the state where the Franciscan Brothers supplied teachers
for a New Jersey school, where some of the acts of sexual abuse allegedly took place,
where one of the boys committed suicide, where the two boys allegedly suffered from
and were treated for psychological injuries, where the Franciscan Brothers were said to
have hired and failed to fire the brother. Under these circumstances, there was every
reason to evaluate, under the proviso to the third Neumeier rule, whether New Jersey law
should displace New York law with respect to the negligent hiring and supervision claim
asserted against the Franciscan Brothers . . . . Here, by contrast, there was no cause to
contemplate a jurisdiction other than New York, the place where the conduct causing the
injuries and the injuries themselves occurred. The trailer defendants did not ask the
Supreme Court to consider the law of their domicile, Pennsylvania, and they had no
contacts whatsoever with Ontario other than the happenstance that plaintiffs and the bus
defendants were domiciled there.
Id. The dissent argued for the application of New York law under third Neumeier rule to both
defendants. See id. at 1044 - 47 (Ciparick, J., dissenting).
(b) Does Edwards reach a coherent result on the facts of the case? Is it tolerable that
defendants who are less at fault will end up paying more just because there is a conflicts issue in
the case? Do you agree that the number and intensity of the contacts in a case should dictate
whether the exception in the Neumeier rule should be applied? How does one go about
measuring the intensity of contacts? Do you agree that forum shopping is relevant to whether the
third Neumeier rule or its exception should be applied? Note also that the trial court had taken
judicial notice of Ontario law, even though the defendants did not raise it as an affirmative
defense and provide evidence of what it was. The intermediate court of appeals and the court of
D.
LEFLERS CHOICE INFLUENCING CONSIDERATIONS
19
appeals affirmed this result, but the court of appeals then held it against the Pennsylvania
defendants in determining whether they got the benefit of the Ontario damage cap that they did
not invoke the law of their domicile. Is this consistent?
(c) Edwards is discussed in Symeon C. Symeonides, Choice of Law in the American Courts
in 2011: Twenty-Fifth Annual Survey, 60 Am. J. Comp. L. 291, 308 (2012).
C. SECOND RESTATEMENT: THE MOST SIGNIFICANT RELATIONSHIP
See also West American Ins. Co. v. RLI Ins. Co. 698 F.3d 1069 (8th Cir. 2012) (under
Missouri most significant contacts analysis, Kansas law applied to excess excess insurers
counterclaim against primary insurer for bad faith refusal to settle involving Kansas insured;
court characterizes case as tort case and applies 145; court focused on relationship between
insured and insurer, even though insured was not party to case); National Union Fire Ins. Co. of
Pittsburgh v. American Eurocopter Corp., 692 F.3d 405 (5th Cir. 2012) (Texas most significant
relationship test applied after transfer for lack of personal jurisdiction from Hawaii; after listing
contacts and finding more with Hawaii than Texas, court examines 6 factors and states in a
conclusory fashion that they favor application of Texas law, especially Texas public policy);
Yelton v. PHI, Inc., 669 F.3d 577 (5th Cir. 2012) (after transfer of venue from Florida, U.S.
District Court in Louisiana applies Floridas conflicts law, the most significant relationship, by
counting contacts and then concluding that Louisiana is state of the most significant
relationship).
See also Sinnott v. Thompson, 32 A.3d 351 (Del. 2011) (Delaware law of comparative
negligence applied to North Carolina accident under most significant relationship).
D. LEFLARS CHOICE-INFLUENCING CONSIDERATIONS
[The relevant discussion corresponding to the indented quote on pages 327 - 28 is now found
in the following source.]
ed. 2011).
20
CH. 4
E. OTHER APPROACHES
2. Eclectic Solutions: Combining Choice-of-Law Approaches
See Crdenas v. Muangman, 998 A.2d 303 (D.C. 2010) (abortion performed in District of
Columbia by a D.C. doctor on a Virginia domicillary; husbands loss of consortium claim
dismissed under Virginia law, which did not allow it, although court of appeals reinstates wifes
jury verdict on primary medical malpractice claim; court holds action for loss of consortium
governed by the law of the state of the marital domicile, that Virginia had an obvious interest in
regulating the rights of married persons domiciled in Virginia, and that Virginias interest would
be seriously impaired by applying D.C. law on loss of consortium, while D.C.s interest in
punishment and deterrence of wrongful conduct would be satisfied by applying D.C. law on
primary claim); also Pietrangelo v. Wilmer Cutler Pickering Hale & Dorrr, LLP, ___ A.3d ___,
2013 WL 1460503 (D. C. 2013) (District of Columbia law applied to tort action against law firm
under Districts modified governmental interest analysis; court lists factors under
RESTATEMENT (SECOND) 145 and appears to count them to conclude that the District had the
most significant relationship to the case; however, it did appear that Massachusetts, the only state
whose law conflicted with that of the District, had very little connection with the dispute).
[Substitute the following citation for the citation toward the end of Note 3 on page 343.]
See also Love v. Sanctuary Records Group L.T.D., 611 F.3d 601(9th Cir. 2010) (California
had no governmental interest in applying its right-of-publicity laws to claim arising from
promotional campaign in Great Britain).
[Insert at the end of Note 5(a) on page 348.]
McGee v. Arkel Intl, LLC, 671 F.3d 539 (5th Cir. 2012) (Iraqi law applied under Louisiana
conflicts approach to action against contractor who allegedly caused service members death in
Iraq); Arabie v. Citgo Petroleum Corp., 89 So.3d 307 (La. 2012) (Louisiana law applied under
Louisiana conflicts codification to Louisiana plaintiffs injured in Louisiana by exposure to toxic
chemicals from defendants oil refinery; court refuses to hold that critical conduct of defendant
occurred at corporate headquarters in Texas and Oklahoma so that punitive damages could be
awarded under the law of those states).
F.
SPECIAL PROBLEMS: MASS TORTS
21

See also Kenneth C. Kettering, Codifying a Choice of Law Rule for Fraudulent Transfer: A
Memorandum to the Uniform Law Commission, 19 AM. BANKR. INST. L. REV. 319 (2011); James
R. Nafziger, The Louisiana and Oregon Codifications of Choice-of-Law Rules in Context, 58
AM. J. COMP. L. 165 (2010); Symeon C. Symeonides, The Conflicts Book of the Louisiana Civil
Code: Civilian, American, or Original?, 83 TULANE L. REV. 1041 (2009); Symeon C.
Symeonides, Oregons New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 OR.
L. REV. 963 (2009).
3. Theories of Selected Commentators
a. Tort Policies and Choice-of-Law Policies
[Insert at the end of carryover paragraph on page 350.]
See also Symeon C. Symeonides, Choice of Law in Cross-Border Torts: Why Plaintiffs Win
and Should, 61 HAST. L.J. 337 (2009).
4. Approaches Used in Selected Foreign Countries
b. Canada: Rediscovery of the Lex Loci Delicti
See also Mo Zang, Codified Choice of Law in China: Rules, Processes and Theoretic
Underpinnings, 37 N.C. J. INTL L & COMM. REG. 83 (2011).
F. SPECIAL PROBLEMS: MASS TORTS
2. Class Actions
[Insert at the end of the first paragraph on page 358.]
See also Casa Orlando Apts., L.T.D. v. Fed. Nat. Mortg. Assoc., 624 F.3d 185 (5th Cir. 2010)
(law of single state could not be applied in breach of fiduciary duty action; class action could not
be certified under any one of the three kinds of class actions in Rule 23); Weber v. Mobile Oil
Corp., 243 P.3d 1 (Okla. 2010) (in action for underpayment of royalties from gas plant in
Oklahoma, court applies RESTATEMENT (SECOND) to determine whether Oklahoma law could be
applied to issues such as fraud, deceit, and punitive damages and concluded that it could;
therefore, class certification would be appropriate because one states law instead of multiple
state laws could be applied); Schnall v. A.T. & T. Wireless Servs., Inc., 225 P.3d 929 (Wash.
22
CH. 4
2011) (choice-of-law clause in consumer contract valid and precludes certification of nationwide
class because laws of different states would be applied under clause). For other decisions on
choice of law and class action certification, see Symeon C. Symeonides, Choice of Law in the
American Courts in 2010: Twenty-Fourth Annual Survey, 59 AM. J. COMP. L. 303, 352-360
(2011).
*****
Chapter 5
CHOICE OF LAW: CONTRACTS
A. TRADITIONAL APPROACHES
1. Alternative Reference
[Substitute the following citations for those in the opening paragraph of this subsection on
page 363.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW '' 127 (Preference for
Validation), 132 (Usury) (6th ed. 2011).
[The indented quote with minor stylistic modifications is now found in the following source.]
ed. 2011).
B. SOME MODERN APPROACHES
1. When The Contract Does Not Contain a Choice-of-Law Clause
See also Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir.
2012) (California law allowing proof of an implied in fact contract applied under the New York
grouping of contacts approach because California had all the significant contacts).
For a recent attempt by the U.S. Court of Appeals for the Fifth Circuit to apply Texas
conflicts law, in which the court employs contact listing and simply states that all the factors in
188 point to the application of Montana law, see Ballard v. Devon Energy Production Co., 678
F.3d 360 (5th Cir. 2012).
Cf. Natl Union Fire Ins. Co. of Pittsburgh, Pa. v. Standard Fusee Corp., 940 N.E.2d 810
(Ind. 2010) (Indiana applies Auniform-contract-interpretation approach,@ which results in the
application of a single law to an entire contract even though the contract covers multiple risks in
multiple states).
23
24
CH. 5

See In re Liquidation of Midland Ins. Co., 947 N.E.2d 1174 (N.Y. 2011) (under New Yorks
grouping of contacts approach, in insurance cases the jurisdiction with the most significant
relationship to the transaction and the parties will generally be the jurisdiction where the parties
understood the principal location of the insured risk would be; however, in applying the grouping
of contacts test to a policy governing risks located in multiple states, the insureds domicile
should be regarded as a proxy for the principal location of the insured risk).
For cases applying Pennsylvanias hybrid governmental interest and RESTATEMENT
(SECOND) analysis, see Pacific Employers Ins. Co. v. Global Reinsurance Corp. of America, 693
F.3d. 417 (3d Cir. 2012) (action by excess insurer against reinsurer for breach of contract; court
described Pennsylvania and New York as having interests in having their law applied; court
interpreted Pennsylvania law (which was not clear) as invalidating a prompt notice of loss
provision in the absence of a showing of prejudice; the court held that New York law was clear
that the provision was valid; the court held that New York law should govern this true conflict
under the contacts listed in 188 and the factors in 6, especially because application of New
York law would uphold the expectations of the parties at the time of the contract was formed);
Specialty Surfaces Intl v. Contl Cas. Co., 609 F.3d 223 (3d Cir. 2010) (true conflict existed
between Pennsylvania and California law; Pennsylvania law applied because under
RESTATEMENT (SECOND) analysis, when insurance contract has no principal place of insured risk,
court applies law of place that has the greater contacts, which was Pennsylvania); cf. Scottsdale
Ins. Co. v. Morrow Land Valley Co., LLC, ___ S.W.3d ___, 2012 Ark. 247, 2012 WL 1950247
(2012) (Arkansas insurance policy insuring coverage for land in Tennessee provided coverage
for environmental contamination in Tennessee; court adds up contacts to conclude Arkansas law
applies).
2. When the Contract Contains a Choice-of-Law Clause
[Insert after Note 1(a) on page 410.]
See also Estate of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233 (11th Cir. 2012)
(cruise ticket contained choice-of-law clause selecting English law and a choice-of-forum clause
providing for exclusive jurisdiction in the courts of England and Wales; clause upheld against an
attack that argued it violated the policy of 46 U.S.C. 30509(a), which invalidates clauses
purporting to limit the liability of owners of vessels who transport passengers between ports of
the United States).
In a very unusual case, an employee brought an action under the Massachusetts Wage Act
against an employer. The employment contract contained both a forum selection clause and a
choice-of-law clause pointing to New York law. The Massachusetts Supreme Judicial Court
B.
SOME MODERN APPROACHES
25
upheld the forum selection clause as valid and enforceable under New York law. In response to
the employees argument that the operation of the forum selection clause would violate the
public policy of Massachusetts because the New York courts would apply New York law instead
of the Massachusetts Wage Act, the court agreed, but stated that the New York courts would
interpret the choice-of-law clause not to incorporate the statutory claim and would, under general
New York conflict of laws principles, apply the Massachusetts Wage Act! See Mella v. Zenhire,
Inc., 967 N.E.2d 580 (Mass. 2012). After dismissal, what happens if the New York courts betray
the Massachusetts courts faith? See also IRB-Brasil Resseguros, SA. v. Inepar Investments,
S.A., 982 N.E.2d 609 (2012) (New York statute says in contracts involving transactions
exceeding $250,000, parties can specify that New York law is applicable even if the contract
does not bear a reasonable relation to the state; court upholds choice-of-law clause on such a
contract; contract also specified New York as the forum); Maral Kilejian & Christianne Edulnd,
Enforceability of Choice of Forum and Choice of Law Provisions, 32 FRANCHISE L.J. 81 (2012).
[Insert at the end of Note 1(c) on page 410.]
See also In re Olshan Found. Repair Co., L.L.C., 328 S.W.3d 883 (Tex. 2010) (a general
choice-of-law provision may reasonably be read as merely a substitute for the conflict-of-laws
analysis that otherwise would determine what law to apply to disputes.).
See also Justin Markel, Efficacy of Contractual Solutions in the Interstate Enforcement of
Covenants Not to Compete, 51 S. TEX. L. REV. 783 (2010).

See also Countour Design, Inc. v. Chance Mold Steel Co., Ltd., 693 F.3d 102 (1st Cir. 2012)
(under New Hampshire conflicts law, a choice-of-law provision will be upheld if it bears any
significant relationship to the chosen state; however, here the only contact with Colorado, the
chosen form, was that the attorney who drafted the contract was located there); Kunda v. C.R.
Bard, Inc., 671 F.3d 464 (4th Cir. 2011) (under Maryland choice-of-law rules, RESTATEMENT
(SECOND) ' 187, New Jersey law applied as per choice-of-law clause; merely because Maryland
law is dissimilar to the law of another jurisdiction does not render that law contrary to Maryland
public policy); Ruiz v. Affinity Logistics Corp., 667 F.3d 1318 (9th Cir. 2011) (California law
rather than Georgia law applied in class action alleging that employer failed to pay overtime
wages even though Georgia had a substantial relationship to the parties, because Georgia law on
whether truck drivers were employees or independent contractors conflicted with fundamental
California policy and California had a materially greater interest in the outcome of the case);
Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996 (9th Cir. 2010)
(California law governed validity of choice-of-law clause selecting Texas law; although Texas
had a substantial relationship to the parties and the transaction, application of Texas law, which
26
CH. 5
would provide for enforcement of arbitration clause in contract, would violate fundamental
public policy of California in favor of protecting franchisees from unfair and deceptive business
practices and California has a materially greater interest in having its law of unconscionability of
arbitration agreements applied because franchisee was California resident and Californias policy
would be more impaired than that of Texas); Narayan v. EGL, Inc., 616 F.3d 895 (9th Cir. 2010)
(choice-of-law clause selecting Texas law ineffective to validate contract clause designating
truck drivers as independent contractors rather than employees; drivers status depends on the
definition that the otherwise applicable law, rather than the parties, gives to the term employee);
John T. Jones Const. Co. v. Hoot Gen. Const. Co., Inc., 613 F.3d 778 (8th Cir. 2010) (choice-oflaw clause held not applicable to issues concerning contract formation; clause can have no effect
until the court determines that a contract properly exists); Williamson Pounders Architects PC v.
Tunica Cnty., 597 F.3d 292 (5th Cir. 2010) (choice-of-law clause selecting Tennessee law not
enforced because it would violate a fundamental policy of Mississippi against allowing oral
modifications of contracts to be enforced against the county); McKeage v. Cordonnier, 357
S.W.3d 597 (Mo. 2012) (Missouri choice-of-law clause resisted by party who inserted it into
contract, but court holds clause did not violate fundamental policy of any other state); Mueller v.
Mueller, 54 A.3d 168 (Vt. 2012) (court construes separation agreement in accord with
Massachusetts law because of a choice of law clause in contract providing that Massachusetts
law would govern, citing cmt. c. to 187); cf. Southeast Floating Docks, Inc. v. Auto-Owners,
Ins. Co., 82 So.3d 73 (Fla. 2012) (choice-of-law clause only applies to substantive rather than
procedural matters; however, attorneys fees are substantive).
Michael H. Hoffheimer, Conflicting Rules of Interpretation and Construction in MultiJurisdictional Disputes, 63 RUTGERS L. REV. 599 (2011); Dolly Wu, Timing the Choice of Law
by Contract, 9 NW. J. TECH. & INTELL. PROP. 401 (2011).
C. SOME SPECIAL PROBLEMS
[Substitute the following for the citation in Note 3 at the end of page 422.]
2. The Uniform Commercial Code
[Substitute the following for the McDougal, Felix & Whitten citation toward the end of Note
1(b) on page 427.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW '' 134 (Bills and
Notes), 155 (Transactions Under the UCC).
C.
SOME SPECIAL PROBLEMS
27
[Substitute the following citation for the citation at the end of Note 5 on page 428.]
See also Charles R. Calleros, Toward Harmonization and Certainty in Choice-of-Law Rules
for International Contracts: Should the U.S. Adopt the Equivalent of Rome I?, 28 WIS.INTL L.J.
639 (2011); Markus A. Petsche, International Commercial Arbitration and the Transformation
of the Conflict of Laws Theory, 18 MICH. ST. J. INTL L. 453 (2010).
*****
28
CH. 5
Chapter 6
CHOICE OF LAW: PROPERTY, TRUSTS, AND ESTATES
A. LAND
[The indented quotation in the first paragraph on page 432 is now found in the following
source with minor stylistic modifications.]
2011).
[Substitute the following citation for the citation at the end of the last textual paragraph
before the Harbor Funding case on page 439.]
[Substitute the following citation for the citation at the top of page 459.]
B. PERSONALTY
[Substitute the following citation for the citation in Note 1(a) on page 462.]
[The discussion of Shanahan in the indented quote on pages 462 - 63 is now found in the
following source.]
But see Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010) (declaratory judgment action to
recover art stolen by the Nazis during World War II; trial court applied rule that questions
relating to the validity of a transfer of personal property are governed by the law of the state
where the property is located at the time of the alleged transfer; court of appeals disagreed,
holding that this was not the New York rule because New York had adopted governmental
interest analysis, but court also considered RESTATEMENT (SECOND); court seems at different
points to state that New York has the only legitimate interest (with Switzerland having no
interest) and that New York has the significantly greater interest while Switzerlands interest is
Atenuous@); see also Museum of Fine Arts, Bos. v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010)
29
30
CH. 6
(claim for art stolen by Nazis barred by Massachusetts statute of limitations because plaintiff did
not send demand letter to museum until more than three years after she should have discovered
the art was in museums possession); Dunbar v. Seger-Thomschitz, 615 KF.3d 574 (5th Cir.
2010) (claim for art stolen by Nazis barred by Louisiana statute of limitations; current Aowner@
had publicly and openly possessed the art for more than ten years and had thus acquired title to it
under Louisiana prescription law); Laurie Frey, Note, Baklar v. Vavra and the Art of Conflicts
Analysis in New York; Framing a Choice of Law Approach for Moveable Property, 112 COLUM.
L. REV. 1055 (2012).
[Substitute the following citation for the citation in Note 1 on page 469.]
[The indented quotation in Note 2 on page 469 is now found in the following source.]
2011).
[The indented quotation in Note on pages 470 - 71 is now found in the following source.]
2011).
[The citation in Note 2 at the top of page 473 is obsolete and should be eliminated.]
D. WILLS AND INHERITANCE
[Substitute the following citation for the citation in Note 1 at the top of page 479.]
2011).
[Substitute the following citation for the McDougal, Felix & Whitten citation in Note 4(b) at
the top of page 480.]
[Insert after Note 4(b) on page 480.]
5. John P. Gaset, Note, Conflict of Law Regarding Revocation of Wills: Mutiny on the Situs
Default, 39 FLA. ST. U. L. REV. 1105 (2012).
E.
E.
DECEDENTS ESTATES
31
DECEDENTS ESTATES
[The indented quotation in Note 1(c) on page 486 is now found in the following source.]
[Insert at the end of Note 1(c) on page 486.]
See also Estate of Charania, 608 F.3d 67 (1st Cir. 2010) (for purposes of federal estate tax
case, ownership of intangible personal property is controlled by the whole law of the decedents
domicile at time of death; in this case, decedent domiciled in Belgium at death, and Belgian
choice-of-law rules would look to the whole law of the country of the spouses common
nationality, which was England; England would apply the doctrine of immutability, by which the
marital property regime of the jurisdiction in which the spouses were domiciled at the time of
their marriage governs all personal property that they acquire thereafter, regardless of where they
are living when the property is acquired or whether their domicile changes; spouses were
domiciled at the time of their nuptials in Uganda, whose law corresponded at the time with
Englands, which is a separate property regime; thus the property was the husbands separate
property, not community property (as it would have been if the law of the parties domicile at the
time it was acquired applied) and all the property should have been included in the husbands
estate for estate tax purposes).
[The indented quotation on pages 486 - 87 is now found in the following source.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW ' 172, at 533 (6th
ed. 2011).
*****
32
CH. 6
Chapter 7
FAMILY LAW
A. MARRIAGE AND ITS TERMINATION
1. Marriage
2011).
See also Norman v. Ault, 695 S.E.2d 633 (Ga. 2010) (recognizing the validity of an Alabama
common-law marriage); In re Estate of Duval, 777 N.W.2d 380 (S.D. 2010) (concubinage
relationship, which Mexico recognizes as a legal union of a man or woman producing reciprocal
rights and obligations of support and inheritance, was not the equivalent of a common-law
marriage and did not produce inheritance rights under South Dakota law; parties had lived
together in Oklahoma, which provides for common-law marriage, but court found that the
requirements for such a marriage under Oklahoma law were not met).
Cf. David J. Herzug, DOMA and Diffusion Theory: Ending Animus Legislation Through a
Rational Basis Approach, 44 AKRON L. REV. 621 (2011).
[Insert after Note 3(c) on page 494.]
(cc) In United States v. Windsor, __ U.S. ___ (No. 12-307, June 26, 2013), the United States
Supreme Court held that the part of DOMA defining marriage as only between a man and a
woman for purposes of federal law violated the equal liberty of persons protected by the Fifth
Amendment to the United States Constitution, because it carved out a subset of marriages
protected by the state and made them unequal. In Hollingsworth v. Perry, California plaintiffs
challenged, in federal court, the constitutionality of an amendment to the California constitution
defining marriage as a union between a man and a woman. The state officials named as
defendants refused to defend the action and refused to appeal after the amendment was declared
unconstitutional by the district court. Instead, the amendment was defended by the official
proponents of the referendum that lead to the amendment and these proponents were also
allowed to appeal. The Ninth Circuit Court of Appeals sustained their standing to defend the
amendment and affirmed the decision of the district court on the merits. On the standing issue
the Ninth Circuit had certified a question to the California Supreme Court asking whether the
33
34
FAMILY LAW
CH. 7
proponents of the amendment had standing under California law, and the state Supreme Court
stated that they did. Nevertheless, the U.S. Supreme Court vacated the judgment and remanded
the case, holding that as a matter of federal law, there was no standing to appeal the district
courts decision. This made it improper for the Court to express an opinion on the merits of the
constitutional challenge.
Together, Windsor and Hollingsworth leave unclear the
constitutionality of that part of DOMA enacted under the Full Faith and Credit Clause.
[Substitute the following citation for the McDougal, Felix & Whitten citation in Note 3(d) on
paged 494.]
More recent literature on the conflicts and constitutional issues involved in same-sex
marriage and related issues includes: William Baude, Beyond DOMA: Choice of State Law in
Federal Statutes, 64 STAN. L. REV. 1371 (2012); John Bergstresser, When Evidentiary Rules
Enforce Substantive Policies: Same-Sex Marital Privilege Under Federal Rule of Evidence 501
in Diversity Cases, 46 New Eng. L. Rev. 303 (2012); Bruce E. Boyden, Constitutional Safety
Valve: The Privileges or Immunities Clause and Status Regimes in a Federal System, 62 ALA. L.
REV. 111 (2010); Charles M. Cannizzaro, Marriage in California: Is the Federal Lawsuit
Against Proposition 8 About applying the Fourteenth Amendment or Preserving Federalism, 38
PEPPERDINE L. REV. 161 (2010); David B. Cruz, Sexual Judgments: Full Faith and Credit and
the Relational Character of Legal Sex, 46 HARV. C. R.-C. L. L. REV. 51 (2011); Drew A.
Cumings-Peterson, Out -of-state Civil Unions in Iowa After Varnum v. Brien: Why the State of
Iowa Should Recognize Civil Unions as Marriages, 96 IOWA L. REV. 297 (2010); Megan Filoon,
Note, New York State of Mind: How the Marriage Equality Act Foreshadows the Repeal of
DOMA and the Potential Tax Consequences for Same-Sex Couples, 10 RUTGERS J. L. & PUB.
POLY 31 (2013); Hillel Y. Levin, Resolving Interstate Conflicts Over Same-Sex Non-Marriage,
63 FLA. L. REV. 47 (2011); Hillel Y. Levin, Conflicts and the Shifting Landscape Around SameSex Relationships, 41 CAL. W. INTL L.J. 93 (2010); Alexander V. Maugeri, The Missing
Ingredient: How Oft-Overlooked Modern Conflict of Laws Principles Will Dictate the Reach of
Same-Sex Marriage, 30 ST. L. U. PUB. L. REV. 325 (2011); L. Lynn Hogue, The Constitutional
Obligation to Adjudicate Petitions for Same-Sex Divorce and the Dissolution of Civil Unions and
Analogous Same-Sex Relationships: Prolegomenon to a Brief, 41 CAL. W. INTL L.J. 229 (2010);
Mae Kuykendall, Equality Federalism: A Solution to the Marriage Wars, 15 U. PA. J. CONST. L.
377 (2012); Mark D. Rosen, Congresss Primary Role in Determining What Full Faith and
Credit Requires: An Additional Argument, 41 CAL. W. INTL L.J. 7 (2010); Mark P. Strasser,
DOMA and the Constitution, 58 DRAKE L. REV. 1011 (2010); Lynn D. Wardle, Involuntary
Imports: Williams, Lutwak, The Defense of Marriage Act, Federalism, and Thick and Thin
Conceptions of Marriage, 81 Ford. L. Rev. 771 (2012); Lynn D. Wardle, Section Three of the
Defense of Marriage Act: Deciding, Democracy, and the Constitution, 58 DRAKE L. REV. 951
A.
MARRIAGE AND ITS TERMINATION
35
(2010); Lynn D. Wardle, Who Decides? The Federal Architecture of DOMA and Comparative
Marriage Recognition, 41 CAL. W. INTL L.REV. 143 (2010); Lynn D. Wardle, Marriage and
Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, J. L. & FAM.
STUD. 315 (2010); Zachery Willenbrink, Conflicts of Law and Policy Relating to Same-Sex
Marriage Recognition in Wisconsin, 94 MARQ. L. REV. 721 (2010). Cf. Peter J. Harrington,
Note, Untying the Knot: Extending Intestacy Benefits to Non-Traditional Families by Severing
the Link to Marriage, 25 J. CIV. RTS. & ECON. DEV. 323 (2011).
For a description of Oklahomas Save Our State Amendment, which attempts to limit the
application of Sharia law in ways that would affect foreign marriages, see John T. Parry,
Oklahomas Save Our State Amendment and the Conflict of Laws, 65 OKLA. L. REV. 1 (2012).
[Substitute the following citation for the citation to McDougal, Felix & Whitten in Note 3(f)
on page 495.]
2011).
2. Divorce
See also Conley v. Crisafulli, 909 A.2d 677 (Vt. 2010) (Domicile is a factual finding that is
reviewed for clear error; it was not clear error for trial court to conclude that wife intended to
give up her New York domicile and remain in Vermont indefinitely, so that Vermont had
jurisdiction over her divorce action).
[Substitute the following citation for the citations to McDougal, Felix & Whitten in Note 1(d)
on page 504.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW '' 175 (Marriage as a
Status), 178 (Divorce: Grounds) (6th ed. 2011).
[Substitute the following citation for the McDougal, Felix & Whitten citation at the end of
Note 1(e) on page 505.]
[Substitute the following citation for the McDougal, Felix & Whitten citation toward the end
of Note 1(f) on page 505.]
36
FAMILY LAW
CH. 7
[Substitute the following citation for the McDougal, Felix & Whitten citation toward the end
of Note 5 on page 507.]
2011).
The controversy over same-sex marriage recognition has also affected divorce jurisdiction,
because, logically, if a state may refuse to recognize that a same-sex couple is married, it will not
divorce them. But see Port v. Cowan, 44 A.3d 970 (Md. 2012) (out-of-state same-sex marriage
recognized as a matter of comity for purposes of divorce; Elia-Warnken v. Elia,972 N.E.2d 17
(Mass. 2012) (Vermont civil union not dissolved at the time of a Massachusetts marriage was the
equivalent of a marriage under Massachusetts law; therefore, Massachusetts marriage was void).
See generally L. Lynn Hogue, The Constitutional Obligation to Adjudicate Petitions for SameSex Divorce and the Dissolution of Civil Unions and Analogous Same-Sex Relationships:
Prolegomenon to a Brief, 41 CAL. W. INTL L.J. 229 (2010); Courtney G. Joslin, Modernizing
Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U.L. REV. 1669 (2011);
Robert E. Rains, A Minimalist Approach to Same-Sex Divorce: Respecting States that Permit
Same-Sex Marriages and States that Refuse to Recognize Them, 2012 UTAH L. REV. 393 (2012);
Judith M. Stinson, The Right to (Same-Sex) Divorce, 62 CASE W. RES. L. REV. 447 (2011); Nick
Tarasen, Untangling the Knot: Finding a Forum for Same-Sex Divorces in the State Celebration,
78 U. CHI. L. REV. 1585 (2011).
Note 4 on page 511.]
B. SUPPORT: DECREES/ORDERS
1. ADivisible Divorce@
[Substitute the following citation for the citation to McDougal, Felix & Whitten toward the
end of Note 3 on page 515.]
B.
SUPPORT: DECREES/ORDERS
37
2. Support C Generally
b. Uniform Reciprocal Enforcement of Support Act
[The indented quotation on pages 521 and 522 is now found in the following source.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS Law ' 184 (6th ed. 2011).
c. Uniform Interstate Family Support Act
See In re Scott, 999 A.2d 229 (N.H. 2010) (New Hampshire has jurisdiction to modify a prior
Massachusetts child support order because parties and children no longer live in Massachusetts;
mother who sought modification of order did not reside in New Hampshire, but father did;
however, New Hampshire court could not modify the provision of the Massachusetts decree
providing for the duration of the fathers support obligations, because that was an unmodifiable
part of the decree).
[Substitute the following citation for the citation to McDougal, Felix & Whitten in Note 5 on
page 524.]
C. CUSTODY
[The indented quotation at the beginning of this section on page 532 is now found in the
following source with minor stylistic modifications.]
2011).
ed. 2011).
38
FAMILY LAW
CH. 7
1. The Uniform Child Custody Jurisdiction Enforcement

Act
[Substitute the following citation for the McDougal, Felix & Whitten citation toward the
bottom of page 536.]
ed. 2011).
4. In NC v. State, 294 P.3d 866 (Wyo. 2013), the maternal grandmother of two children
brought them to Wyoming from Texas after they had been abused in the latter state by their
mothers boyfriend. The grandmother commenced an action in state court to establish neglect,
and the Wyoming trial court adjudicated them as neglected. On appeal by the mother and
boyfriend, the Wyoming Supreme Court raised the issue of whether the trial court had subject
matter jurisdiction under the UCCJEA on its own motion. The court held the UCCJEA
applicable, because the dispute was an interstate child custody dispute. The court held that the
Wyoming trial court did not have jurisdiction under the UCCJEA to make an initial child
custody determination because Texas, rather than Wyoming, was the home state. However, the
court held that court properly exercised emergency jurisdiction under the UCCJEA on the
evidence before it. The court went on to state that emergency jurisdiction under the UCCJEA is
temporary and limited and does not include the authority to make permanent custody
determinations. Thus, the court remanded to the trial court with instructions to contact the Texas
court that had concurrent jurisdiction over the childrens custody to determine when the Texas
court could assume jurisdiction over the abuse and neglect allegations. After it received such
information, the trial court was directed to issue amended protective custody orders specifying
that they are temporary in nature and also specifying an expiration date based on the information
obtained.
2. Full Faith and Credit to Child Custody Determinations
6. See also Rebecca Miller, The Parental Kidnapping Prevention Act: Thirty Years Later
and of No Effect? Where Can the Unwed Father Turn?, 40 PEPP. L. REV. 735 (2013).
3. International Child Abduction
In Abbott v. Abbott, 560 U.S. 1 (2010), the parties lived in Chile, which is a party to the
C.
CUSTODY
39
Convention. They separated and a Chilean court awarded custody of their son to the wife, with
visitation rights in the husband. Without the husbands consent, the wife took the child to Texas.
Under Chilean law, a party who has a right of visitation, such as the husband, also has the right
to prevent the childs removal from Chile. The U.S. Supreme court held that the right to prevent
removal of the child was the equivalent of a right of custody under the Convention and that this
made the wifes removal of the child from Chile wrongful under the Convention.
In Chafin v. Chafin ___ U.S. ___, 133 S. Ct. 1017 (2013), the Court held that the return of a
child to a foreign country pursuant to a return order under the Convention does not moot the case
on appeal. The losing party in the trial court was seeking reversal of the return order, and even
though the appellants chances of success in obtaining an effective re-return order might not be
likely, that did not render the case moot and confused the issue of mootness with the merits.
page 552.]
2011).
[Insert the following citation at the end of Note 5 on page 552.]
See also Robert G. Spector, Memorandum: Accommodating the UCCJEA and the 1996
Hague Convention, 63 OKLA. L. REV. 615 (2011).
4. Adoption
[Substitute the following citation for the citation at the end of the first paragraph in this
subsection on page 553.]
2011).
[Insert at the end of the citations in the first paragraph of Note 2 on page 554.]
See also Steve Sanders, Interstate Recognition of Parent-Child Relationships: The Limits of
the State Interests Paradigm and the Role of Due Process, 2011 U. CHI. LEG. F. 233 (2011).
See also In re Adoption of Baby E.Z., 266 P.3d 702 (Utah 2011) (PKPA is applicable to
adoption proceedings, but father waived application of PKPA to adoption proceeding by failing
to raise it in the trial court).
40
FAMILY LAW
CH. 7
[Insert new Note 2A after the end of paragraph 2 on page 555.]

2A. In Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), an unmarried same-sex couple adopted a
child in New York that had been born in Louisiana. They applied to the Louisiana State
Registrar of Vital Records for an amended birth certificate that would reflect both adoptive
parents names, but the registrar refused under Louisiana law, which did not permit unmarried
couples to obtain revised birth certificates with both parents names. The couple instituted an
action in a Louisiana federal court against the registrar under the Civil Rights Act of 1871, 42
U.S.C. ' 1983 (2006), to compel her to issue the revised birth certificate. The court granted the
adoptive parents motion for summary judgment. The Fifth Circuit Court of Appeals initially
affirmed. 597 F.3d 857. However, on rehearing en banc, the Fifth Circuit reversed and
remanded the case. The court held that, while the plaintiffs had standing to sue and it had to
assume jurisdiction to determine whether the plaintiffs had an actionable claim under the general
implementing statute to the Full Faith and Credit Clause, no such claim for relief existed. Citing
Thompson v. Thompson, 484 U.S. 174 (1988), the court held that while the implementing statute
provides a right to have valid state judgments recognized in other states, it did not give rise to a
federal claim for relief cognizable within the federal question jurisdiction of a federal court. The
court distinguished Finstuen v. Crutcher, cited in Note 2 of the text, as having involved an action
to invalidate an Oklahoma statute that purported to deny recognition to out-of-state adoptions by
same-sex couples. In Adar, by contrast, the court observed that the registrar in Louisiana
conceded the validity of the New York adoption decree, but contended that she still had the right
to refuse the revised birth certificate to the unmarried couple. The court held that the couple
could seek to compel issuance of a new birth certificate in state court and raise the issue of full
faith and credit to the New York adoption decree. The full faith and credit issue might then
provide the federal issue necessary for review by the United States Supreme Court.
Alternatively, the court held that even if ' 1983 provided a basis for suit in federal court, the
plaintiffs could not win because the registrar did not deny recognition to the New York
judgment. The Fifth Circuit read a variety of Supreme Court precedents, including the divisible
divorce precedents examined in Section B.1 of the casebook and the cases refusing faith and
credit to state judgments involving a direct effect to the title to land in other states, examined in
Chapter 9B.2.b(3) of the casebook, as involving a distinction between recognition and
enforcement of state judgments that prevented the New York judgment from compelling an
official act within Louisiana. ARather, the adoption decree >can only be executed in [Louisiana]
as its laws may permit.@ 639 F.3d at 160 (citing Fall v. Eastin, examined in Chapter 9B.2.b(3) of
the casebook). In effect, the court held that the full faith and credit clause does not oblige
Louisiana to confer particular benefits on unmarried adoptive parents contrary to its law. Forum
state law governs the incidental benefits of a foreign judgment. In this case, Louisiana does not
permit any unmarried coupleswhether adopting out-of-state or in-stateto obtain revised birth
certificates with both parents names on them. . . . Since no such right is conferred by either the
Full Faith and Credit Clause or Louisiana law, the Registrars refusal to place two names on the
certificate can in no way constitute a denial of full faith and credit. 639 F.3d at 161. The court
also held that the Equal Protection Clause was not violated by the refusal. Id. at 161 - 62. Note
D.
MARITAL PROPERTY
41
that if the same-sex couple had been married, but Louisiana refused to recognized the validity of
same-sex marriages, DOMA, examined in the casebook in Note 2(b) at page 493 would still have
allowed the registrar to refuse the revised birth certificate. See also Joseph A. Fraioli, Having
Faith in Full Faith & Credit: Finstuen, Adar, and the Quest for Interstate Same-Sex Parental
Recognition, 98 IOWA L. REV. 365 (2012); Lauren Lombardo, Note, Does Heather Have Two
Mommies?: The Importance of Full Faith and Credit Recognition for Adoptions by Same-Sex
Couples, 39 FORD. URB. L.J. 1301 (2012); ); Karel Raba, Note, Recognition and Enforcement of
Out-of-State Adoption Decrees Under the Full Faith and Credit Clause: the Case of
Supplemental Birth Certificates, 15 SCHOLAR 293 (2013); Pamela K. Terry, E Pluribus Unum?
The Full Faith and Credit Clause and Meaningful Recognition of Out-of-State Adoptions, 80
Ford. L. Rev. 3093 (2012).
D. MARITAL PROPERTY
[The indented quotation on page 559 is now found in the following source.]
ed. 2011).
2. Party Autonomy in Marital Property Regimes
a. Unilateral Party Autonomy
In Am. Natl Bank v. Medved, 801 N.W.2d 230 (2011), a husband who was a citizen of
Arizona where he and his wife resided was an obligor on a note that contained a choice-of-law
clause selecting Nebraska law as governing. A judgment was entered against the husband by a
Nebraska court and orders were issued to garnish his wages. The husband and his wife, who
attempted unsuccessfully to intervene, contended that judgment in favor of the bank under
Nebraska law would violate the husbands and wifes rights under the community property law
of Arizona, where they resided. The Nebraska Supreme Court rejected the community property
claim, following ' 187 of the RESTATEMENT (SECOND) OF CONFLICT OF LAWS and holding the
choice of law clause valid. Does this amount to a holding that the husband could obliterate the
wifes community property rights by a unilaterally executed choice-of-law agreement?
b. Bilateral Party Choice
Madeleine N. Foltz, Needlessly Fighting an Uphill Battle: Extensive Estate Planning
Complications Faced by Gay and Lesbian Individuals, Including Drastic Resort to Adult
42
FAMILY LAW
CH. 7
Adoption of Same-Sex Partners, Necessitate Revision of Marylands Intestacy Law to Provide

Heir-At-Law Statuts for Domestic Partners, 40 U. BALT. L. REV. 495 (2011). Cf. Keeva Terry,
Same-Sex Relationships, DOMA, and the Tax Code: Rethinking the Relevance of DOMA to
Straight Couples, 20 COLUM. J. GENDER & L. 384 (2011).
*****
Chapter 8
VERTICAL CHOICE OF LAW
A. THE SWIFT DOCTRINE
[Substitute the following citations for the McDougal, Felix & Whitten and Teply & Whitten
citations toward the end of the carryover paragraph on page 572.]
ed. 2011); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE at 446-50 (5th ed. 2013).
citations at the end of Note 2(e) on page 575.]
citations in Note 3 on page 575.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW ' 103 (6th ed. 2011);
LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE at 446-63 (5th ed. 2013).
B. THE ERIE DOCTRINE
Karen Petroski, Statutory Genres: Substance, Procedure, Jurisdiction, 44 LOY. U. CHI. L.
REV. 189 (2012) (discussing inter alia the substance-procedure distinction as a problem of
characterization under Erie).
See also Volkswagen Group of American, Inc. v. Peter J. McNulty Law Firm, 692 F.3d 4 (1st
Cir. 2012) (state law applied to class action settlement providing for payment of reasonable
attorney fees; neither Rule 23 nor general equitable powers of federal court controlled ability to
fashion an attorney fee award).
[Substitute the following citation for the Teply & Whitten citation at the end of Note 5 on
page587.]
43
44
CH. 8
[Substitute the following citations for the McDougal, Felix & Whittenand Teply & Whitten
citations at the end of Note 3 on page 591.]
2011); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE at 484-92 (5th ed. 2013).
[Add new Note 4 before the problem on page 591.]
4. The affidavit of merit problem (Problem 8.3) on page 591 of the casebook is a real-life
problem that continues to bedevil the lower federal courts. Recent cases involving this problem
include the following: Liggon-Redding v. Estate of Robert Sugerman, 659 F.3d 258 (3d Cir.
2011) (Pennsylvania affidavit of merit statute did not conflict with any Federal Rule of Civil
Procedure and was substantive state law under the Rules of Decision Act that had to be applied
in a federal diversity action); Benjamin Grossberg, Comment, Uniformity, Federalism, and Tort
Reform: The Erie Implications of Medical Malpractice Certification of Merit Statutes, 159 U. PA.
L. REV. 217 (2010). Cf. Lewis v. Waletzky, 31 A.3d 123 (Md. Ct. App. 2011) (in answer to
certified question by U.S. Court of Appeals for the Fourth Circuit, state court holds that filing
requirements of Maryland Health Care Malpractice Claims statute were procedural for conflictof-laws purposes and would have to be applied by a Maryland state court even in an action in
which the injury occurred in the District of Columbia).
[Substitute the following citation for the Teply & Whitten citation toward the end of Note 3
on page 599.]
ed 2011); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE at 496-99, 521-22 (5th ed.
2013).
For a discussion of how Rule 41(b) might have been interpreted more coherently to render it
inapplicable to the issue in Semtek, see ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN
CONFLICTS LAW ' 107, at 354 - 55 (6th Ed. 2011); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL
PROCEDURE at 523-27 (5th ed. 2013).
B.
THE ERIE DOCTRINE
45
9A. See, e.g., Hatch v. Trail King Industries, Inc., 699 F3d 38 (1st Cir. 2012)(successive
diversity actions; no need to decide whether state law of claim preclusion is incompatible with
federal interests, because both state law and federal law of claim preclusion bar the action);
Garcia v. Prudential Insurance Company of America, 293 P.3d 869 (Nev. 2013) (dismissal of
claims without prejudice by federal court in New Jersey; action refilled with identical complaint
in Nevada state court; court holds New Jersey preclusion law governs and precludes action under
doctrine of issue preclusion, because issue of whether complaint failed to state a claim was fully
litigated in New Jersey federal action and the complaint was found to be legally insufficient).
[Insert after Problem 8.13 on page 628.]
SHADY GROVE ORTHOPEDIC ASSOCIATES v. ALLSTATE INSURANCE CO.
559 U.S. 393
Supreme Court of the United States
(2010)
Justice SCALIA announced the judgment of the Court and delivered the opinion of the Court
with respect to Parts I and II-A, an opinion with respect to Parts II-B and II-D, in which THE
CHIEF JUSTICE, Justice THOMAS, and Justice SOTOMAYOR join, and an opinion with
respect to Part II-C, in which THE CHIEF JUSTICE and Justice THOMAS join.
New York law prohibits class actions in suits seeking penalties or statutory minimum
damages. 1
We consider whether this precludes a federal district court sitting in diversity from
entertaining a class action under Federal Rule of Civil Procedure 23.
N.Y. Civ. Prac. Law Ann. ' 901 (West 2006) provides:
(a) One or more members of a class may sue or be sued as representative parties on behalf of all if:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is
impracticable;
2. there are questions of law or fact common to the class which predominate over any questions
affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the
class;
4. the representative parties will fairly and adequately protect the interests of the class; and
A5. a class action is superior to other available methods for the fair and efficient adjudication of the
controversy.
A(b) Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically
authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of
recovery created or imposed by statute may not be maintained as a class action.
46
CH. 8
I
The petitioners complaint alleged the following: Shady Grove Orthopedic Associates, P. A.,
provided medical care to Sonia E. Galvez for injuries she suffered in an automobile accident. As
partial payment for that care, Galvez assigned to Shady Grove her rights to insurance benefits
under a policy issued in New York by Allstate Insurance Co. Shady Grove tendered a claim for
the assigned benefits to Allstate, which under New York law had 30 days to pay the claim or
deny it. See N.Y. Ins. Law Ann. ' 5106(a) (West 2009). Allstate apparently paid, but not on
time, and it refused to pay the statutory interest that accrued on the overdue benefits (at two
percent per month), see ibid. Shady Grove filed this diversity suit in the Eastern District of New
York to recover the unpaid statutory interest. Alleging that Allstate routinely refuses to pay
interest on overdue benefits, Shady Grove sought relief on behalf of itself and a class of all
others to whom Allstate owes interest. The District Court dismissed the suit for lack of
jurisdiction. 466 F.Supp.2d 467 (2006). It reasoned that N.Y. Civ. Prac. Law Ann. ' 901(b),
which precludes a suit to recover a penalty from proceeding as a class action, applies in
diversity suits in federal court, despite Federal Rule of Civil Procedure 23. Concluding that
statutory interest is a penalty under New York law, it held that ' 901(b) prohibited the
proposed class action. And, since Shady Grove conceded that its individual claim (worth roughly
$500) fell far short of the amount-in-controversy requirement for individual suits under 28
U.S.C. ' 1332(a), the suit did not belong in federal court. 3
The Second Circuit affirmed. 549 F.3d 137 (2008). The court did not dispute that a federal
rule adopted in compliance with the Rules Enabling Act, 28 U.S.C. ' 2072, would control if it
conflicted with ' 901(b). But there was no conflict because (as we will describe in more detail
below) the Second Circuit concluded that Rule 23 and ' 901(b) address different issues. Finding
no federal rule on point, the Court of Appeals held that ' 901(b) is substantive within the
meaning of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and thus
must be applied by federal courts sitting in diversity.
We granted certiorari, ___ U.S. ___, 129 S.Ct. 2160, 173 L.Ed.2d 1155 (2009)
II
The framework for our decision is familiar. We must first determine whether Rule 23
answers the question in dispute. Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4-5, 107 S.Ct.
967, 94 L.Ed.2d 1 (1987). If it does, it governs-New Yorks law notwithstanding-unless it
exceeds statutory authorization or Congresss rulemaking power. Id. at 5, 107 S.Ct. 967; see
Hanna v. Plumer, 380 U.S. 460, 463-464, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). We do not wade
into Eries murky waters unless the federal rule is inapplicable or invalid. See 380 U.S. at
469-471, 85 S.Ct. 1136.
Shady Grove had asserted jurisdiction under 28 U.S.C. 1332(d)(2), which relaxes, for class actions
seeking at least $5 million, the rule against aggregating separate claims for calculation of the amount in controversy.
See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 571, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).
B.
THE ERIE DOCTRINE
47
A
The question in dispute is whether Shady Groves suit may proceed as a class action. Rule 23
provides an answer. It states that [a] class action may be maintained if two conditions are met:
The suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity, commonality,
typicality, and adequacy of representation), and it also must fit into one of the three categories
described in subdivision (b). Fed. Rule Civ. Proc. 23(b). By its terms this creates a categorical
rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class
action. (The Federal Rules regularly use may to confer categorical permission, see, e.g.,Fed.
Rules Civ. Proc. 8(d)(2)-(3), 14(a)(1), 18(a)-(b), 20(a)(1)-(2), 27(a)(1), 30(a)(1), as do federal
statutes that establish procedural entitlements, see, e.g., 29 U.S.C. ' 626(c)(1); 42 U.S.C. '
2000e-5(f)(1).) Thus, Rule 23 provides a one-size-fits-all formula for deciding the class-action
question. Because ' 901(b) attempts to answer the same questionCi.e., it states that Shady
Groves suit may not be maintained as a class action (emphasis added) because of the relief it
seeksCit cannot apply in diversity suits unless Rule 23 is ultra vires.
The Second Circuit believed that ' 901(b) and Rule 23 do not conflict because they address
different issues. Rule 23, it said, concerns only the criteria for determining whether a given class
can and should be certified; section 901(b), on the other hand, addresses an antecedent question:
whether the particular type of claim is eligible for class treatment in the first place-a question on
which Rule 23 is silent. See 549 F.3d at 143-144. Allstate embraces this analysis. . . .
We disagree. To begin with, the line between eligibility and certifiability is entirely artificial.
Both are preconditions for maintaining a class action. Allstate suggests that eligibility must
depend on the particular cause of action asserted, instead of some other attribute of the suit, id.
at 12. But that is not so. Congress could, for example, provide that only claims involving more
than a certain number of plaintiffs are eligible for class treatment in federal court. In other
words, relabeling Rule 23(a)s prerequisites eligibility criteria would obviate Allstates
objection-a sure sign that its eligibility-certifiability distinction is made-to-order.
There is no reason, in any event, to read Rule 23 as addressing only whether claims made
eligible for class treatment by some other law should be certified as class actions. Allstate asserts
that Rule 23 neither explicitly nor implicitly empowers a federal court to certify a class in each
and every case where the Rules criteria are met. Id. at 13-14. But that is exactly what Rule 23
does: It says that if the prescribed preconditions are satisfied [a] class action may be
maintained (emphasis added)Cnot a class action may be permitted. Courts do not maintain
actions; litigants do. The discretion suggested by Rule 23s may is discretion residing in the
plaintiff: He may bring his claim in a class action if he wishes. And like the rest of the Federal
Rules of Civil Procedure, Rule 23 automatically applies in all civil actions and proceedings in
the United States district courts, Fed. Rule Civ. Proc. 1. See Califano v. Yamasaki, 442 U.S.
682, 699-700, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979).
Allstate points out that Congress has carved out some federal claims from Rule 23s reach,
see, e.g., 8 U.S.C. ' 1252(e)(1)(B)Cwhich shows, Allstate contends, that Rule 23 does not
authorize class actions for all claims, but rather leaves room for laws like ' 901(b). But
Congress, unlike New York, has ultimate authority over the Federal Rules of Civil Procedure; it
48
CH. 8
can create exceptions to an individual rule as it sees fit-either by directly amending the rule or by
enacting a separate statute overriding it in certain instances. Cf. Henderson v. United States, 517
U.S. 654, 668, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). The fact that Congress has created
specific exceptions to Rule 23 hardly proves that the Rule does not apply generally. In fact, it
proves the opposite. If Rule 23 did not authorize class actions across the board, the statutory
exceptions would be unnecessary.
Allstate next suggests that the structure of ' 901 shows that Rule 23 addresses only
certifiability. Section 901(a), it notes, establishes class-certification criteria roughly analogous to
those in Rule 23 (wherefore it agrees that subsection is pre-empted). But ' 901(b)s rule barring
class actions for certain claims is set off as its own subsection, and where it applies ' 901(a) does
not. This shows, according to Allstate, that ' 901(b) concerns a separate subject. Perhaps it does
concern a subject separate from the subject of ' 901(a). But the question before us is whether it
concerns a subject separate from the subject of Rule 23Cand for purposes of answering that
question the way New York has structured its statute is immaterial. Rule 23 permits all class
actions that meet its requirements, and a State cannot limit that permission by structuring one
part of its statute to track Rule 23 and enacting another part that imposes additional requirements.
Both of ' 901>s subsections undeniably answer the same question as Rule 23: whether a class
action may proceed for a given suit. Cf. Burlington, 480 U.S. at 7-8, 107 S.Ct. 967.
The dissent argues that ' 901(b) has nothing to do with whether Shady Grove may maintain
its suit as a class action, but affects only the remedy it may obtain if it wins. . . . Whereas Rule
23 governs procedural aspects of class litigation by prescrib[ing] the considerations relevant to
class certification and postcertification proceedings, ' 901(b) addresses only the size of a
monetary award a class plaintiff may pursue. . . . Accordingly, the dissent says, Rule 23 and
New Yorks law may coexist in peace.
We need not decide whether a state law that limits the remedies available in an existing class
action would conflict with Rule 23; that is not what ' 901(b) does. By its terms, the provision
precludes a plaintiff from maintain[ing] a class action seeking statutory penalties. Unlike a law
that sets a ceiling on damages (or puts other remedies out of reach) in properly filed class
actions, ' 901(b) says nothing about what remedies a court may award; it prevents the class
actions it covers from coming into existence at all. 4 Consequently, a court bound by ' 901(b)
could not certify a class action seeking both statutory penalties and other remedies even if it
announces in advance that it will refuse to award the penalties in the event the plaintiffs prevail;
to do so would violate the statutes clear prohibition on maintain[ing] such suits as class
actions.
The dissent asserts that a plaintiff can avoid ' 901(b)s barrier by omitting from his
complaint (or removing) a request for statutory penalties. . . . Even assuming all statutory
4
Contrary to the dissents implication . . . we express no view as to whether state laws that set a ceiling on
damages recoverable in a single suit . . . are pre-empted. Whether or not those laws conflict with Rule 23, ' 901(b)
does conflict because it addresses not the remedy, but the procedural right to maintain a class action. As Allstate and
the dissent note, several federal statutes also limit the recovery available in class actions. See, e.g.,12 U.S.C. '
2605(f)(2)(B); 15 U.S.C. ' 1640(a)(2)(B); 29 U.S.C. ' 1854(c)(1). But Congress has plenary power to override the
Federal Rules, so its enactments, unlike those of the States, prevail even in case of a conflict.
B.
THE ERIE DOCTRINE
49
penalties are waivable, the fact that a complaint omitting them could be brought as a class action
would not at all prove that ' 901(b) is addressed only to remedies. If the state law instead banned
class actions for fraud claims, a would-be class-action plaintiff could drop the fraud counts from
his complaint and proceed with the remainder in a class action. Yet that would not mean the law
provides no remedy for fraud; the ban would affect only the procedural means by which the
remedy may be pursued. In short, although the dissent correctly abandons Allstates
eligibility-certifiability distinction, the alternative it offers fares no better.
The dissent all but admits that the literal terms of ' 901(b) address the same subject as Rule
23Ci.e., whether a class action may be maintained-but insists the provisions purpose is to
restrict only remedies. . . . Unlike Rule 23, designed to further procedural fairness and
efficiency, ' 901(b) (we are told) responds to an entirely different concern: the fear that
allowing statutory damages to be awarded on a class-wide basis would produce overkill. . . . .
The dissent reaches this conclusion on the basis of (1) constituent concern recorded in the laws
bill jacket; (2) a commentary suggesting that the Legislature apparently fear[ed] that
combining class actions and statutory penalties could result in annihilating punishment of the
defendant, . . . .
This evidence of the New York Legislatures purpose is pretty sparse. But even accepting the
dissents account of the Legislatures objective at face value, it cannot override the statutes clear
text. Even if its aim is to restrict the remedy a plaintiff can obtain, ' 901(b) achieves that end by
limiting a plaintiffs power to maintain a class action. The manner in which the law Acould have
been written, . . . has no bearing; what matters is the law the Legislature did enact. We cannot
rewrite that to reflect our perception of legislative purpose, . . . . 6 The dissents concern for state
prerogatives is frustrated rather than furthered by revising state laws when a potential conflict
with a Federal Rule arises; the state-friendly approach would be to accept the law as written and
test the validity of the Federal Rule
The dissents approach of determining whether state and federal rules conflict based on the
subjective intentions of the state legislature is an enterprise destined to produce confusion worse
confounded, Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S.Ct. 422, 85 L.Ed. 479 (1941). It
would mean, to begin with, that one States statute could survive pre-emption (and accordingly
affect the procedures in federal court) while another States identical law would not, merely
because its authors had different aspirations. It would also mean that district courts would have
6
Our decision in Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980),
discussed by the dissent, . . . is not to the contrary. There we held that Rule 3 (which provides that a federal civil
action is commenced by filing a complaint in federal court) did not displace a state law providing that [a]n
action shall be deemed commenced, within the meaning of this article [the statute of limitations], as to each
defendant, at the date of the summons which is served on him . . . . 446 U.S. at 743, n. 4, 100 S.Ct. 1978 (quoting
Okla. Stat., Tit. 12, ' 97 (1971); alteration in original, emphasis added). Rule 3, we explained, governs the date
from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of
limitations or tolling rules, which it did not purpor[t] to displace. 446 U.S. at 751, 750, 100 S.Ct. 1978. The texts
were therefore not in conflict. While our opinion observed that the States actual-service rule was (in the States
judgment) an integral part of the several policies served by the statute of limitations, id. at 751, 100 S.Ct. 1978,
nothing in our decision suggested that a federal court may resolve an obvious conflict between the texts of state and
federal rules by resorting to the state laws ostensible objectives.
50
CH. 8
to discern, in every diversity case, the purpose behind any putatively pre-empted state procedural
rule, even if its text squarely conflicts with federal law. That task will often prove arduous. Many
laws further more than one aim, and the aim of others may be impossible to discern. Moreover,
to the extent the dissents purpose-driven approach depends on its characterization of ' 901(b)s
aims as substantive, it would apply to many state rules ostensibly addressed to procedure.
Pleading standards, for example, often embody policy preferences about the types of claims that
should succeedas do rules governing summary judgment, pretrial discovery, and the
admissibility of certain evidence. Hard cases will abound. It is not even clear that a state supreme
courts pronouncement of the laws purpose would settle the issue, since existence of the factual
predicate for avoiding federal pre-emption is ultimately a federal question. Predictably, federal
judges would be condemned to poring through state legislative historywhich may be less
easily obtained, less thorough, and less familiar than its federal counterpart . . . .
But while the dissent does indeed artificially narrow the scope of ' 901(b) by finding that it
pursues only substantive policies, that is not the central difficulty of the dissents position. The
central difficulty is that even artificial narrowing cannot render ' 901(b) compatible with Rule
23. Whatever the policies they pursue, they flatly contradict each other. Allstate asserts (and the
dissent implies . . .) that we can (and must) interpret Rule 23 in a manner that avoids
overstepping its authorizing statute. 7 If the Rule were susceptible of two meanings-one that
would violate ' 2072(b) and another that would not-we would agree. See Ortiz v. Fibreboard
Corp., 527 U.S. 815, 842, 845, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999); cf. Semtek Intl Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 503-504, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). But it is
not. Rule 23 unambiguously authorizes any plaintiff, in any federal civil proceeding, to maintain
a class action if the Rules prerequisites are met. We cannot contort its text, even to avert a
collision with state law that might render it invalid. See Walker v. Armco Steel Corp., 446 U.S.
740, 750, n. 9, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). 8 What the dissents approach achieves is
not the avoiding of a conflict between Rule 23 and ' 901(b), . . . but rather the invalidation of
7
The dissent also suggests that we should read the Federal Rules with sensitivity to important state
interests and to avoid conflict with important state regulatory policies. . . . . The search for state interests and
policies that are important is just as standardless as the important or substantial criterion we rejected in Sibbach
v. Wilson & Co., 312 U.S. 1, 13-14, 61 S.Ct. 422, 85 L.Ed. 479 (1941), to define the state-created rights a Federal
Rule may not abridge.
If all the dissent means is that we should read an ambiguous Federal Rule to avoid substantial variations
[in outcomes] between state and federal litigation, Semtek Intl Inc. v. Lockheed Martin Corp., 531 U.S. 497, 504,
121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (internal quotation marks omitted), we entirely agree. We should do so not to
avoid doubt as to the Rules validityCsince a Federal Rule that fails Erie>s forum-shopping test is not ipso facto
invalid, see Hanna v. Plumer, 380 U.S. 460, 469-472, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)Cbut because it is
reasonable to assume that Congress is just as concerned as we have been to avoid significant differences between
state and federal courts in adjudicating claims, Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 37-38, 108
S.Ct. 2239, 101 L.Ed.2d 22 (1988) (SCALIA, J., dissenting). The assumption is irrelevant here, however, because
there is only one reasonable reading of Rule 23.
8
The cases chronicled by the dissent, . . . each involved a Federal Rule that we concluded could fairly be
read not to control the issue addressed by the pertinent state law, thus avoiding a direct collision between federal
and state law, Walker, 446 U.S. at 749, 100 S.Ct. 1978 (internal quotation marks omitted). But here, as in Hanna,
supra at 470, 85 S.Ct. 1136, a collision is unavoidable.
B.
THE ERIE DOCTRINE
51
Rule 23 (pursuant to ' 2072(b) of the Rules Enabling Act) to the extent that it conflicts with the
substantive policies of ' 901. There is no other way to reach the dissents destination. We must
therefore confront head-on whether Rule 23 falls within the statutory authorization.
B
Erie involved the constitutional power of federal courts to supplant state law with
judge-made rules. In that context, it made no difference whether the rule was technically one of
substance or procedure; the touchstone was whether it significantly affect[s] the result of a
litigation. Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
That is not the test for either the constitutionality or the statutory validity of a Federal Rule of
Procedure. Congress has undoubted power to supplant state law, and undoubted power to
prescribe rules for the courts it has created, so long as those rules regulate matters rationally
capable of classification as procedure. Hanna, 380 U.S. at 472, 85 S.Ct. 1136. In the Rules
Enabling Act, Congress authorized this Court to promulgate rules of procedure subject to its
review, 28 U.S.C. ' 2072(a), but with the limitation that those rules shall not abridge, enlarge or
modify any substantive right, ' 2072(b).
We have long held that this limitation means that the Rule must really regulat[e]
procedure,Cthe judicial process for enforcing rights and duties recognized by substantive law
and for justly administering remedy and redress for disregard or infraction of them, Sibbach,
312 U.S. at 14, 61 S.Ct. 422; see Hanna, supra at 464, 85 S.Ct. 1136; Burlington, 480 U.S. at 8,
107 S.Ct. 967. The test is not whether the rule affects a litigants substantive rights; most
procedural rules do. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 445, 66 S.Ct. 242,
90 L.Ed. 185 (1946). What matters is what the rule itself regulates: If it governs only the
manner and the means by which the litigants rights are enforced, it is valid; if it alters the
rules of decision by which [the] court will adjudicate [those] rights, it is not. Id. at 446, 66 S.Ct.
242 (internal quotation marks omitted).
Applying that test, we have rejected every statutory challenge to a Federal Rule that has
come before us. We have found to be in compliance with ' 2072(b) rules prescribing methods
for serving process, see id. at 445-446, 66 S.Ct. 242 (Fed. Rule Civ. Proc. 4(f)); Hanna, supra at
463-465, 85 S.Ct. 1136 (Fed. Rule Civ. Proc. 4(d)(1)), and requiring litigants whose mental or
physical condition is in dispute to submit to examinations, see Sibbach, supra at 14-16, 61 S.Ct.
422 (Fed. Rule Civ. Proc. 35); Schlagenhauf v. Holder, 379 U.S. 104, 113-114, 85 S.Ct. 234, 13
L.Ed.2d 152 (1964) (same). Likewise, we have upheld rules authorizing imposition of sanctions
upon those who file frivolous appeals, see Burlington, supra at 8, 107 S.Ct. 967 (Fed. Rule App.
Proc. 38), or who sign court papers without a reasonable inquiry into the facts asserted, see
Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 551-554,
111 S.Ct. 922, 112 L.Ed.2d 1140 (1991) (Fed. Rule Civ. Proc. 11). Each of these rules had some
practical effect on the parties rights, but each undeniably regulated only the process for
enforcing those rights; none altered the rights themselves, the available remedies, or the rules of
decision by which the court adjudicated either.
52
CH. 8
Applying that criterion, we think it obvious that rules allowing multiple claims (and claims
by or against multiple parties) to be litigated together are also valid. See, e.g.,Fed. Rules Civ.
Proc. 18 (joinder of claims), 20 (joinder of parties), 42(a) (consolidation of actions). Such rules
neither change plaintiffs separate entitlements to relief nor abridge defendants rights; they alter
only how the claims are processed. For the same reason, Rule 23Cat least insofar as it allows
willing plaintiffs to join their separate claims against the same defendants in a class action-falls
within ' 2072(b)s authorization. A class action, no less than traditional joinder (of which it is a
species), merely enables a federal court to adjudicate claims of multiple parties at once, instead
of in separate suits. And like traditional joinder, it leaves the parties legal rights and duties intact
and the rules of decision unchanged.
Allstate contends that the authorization of class actions is not substantively neutral: Allowing
Shady Grove to sue on behalf of a class transform[s][the] dispute over a five hundred dollar
penalty into a dispute over a five million dollar penalty. . . . Allstates aggregate liability,
however, does not depend on whether the suit proceeds as a class action. Each of the 1,000-plus
members of the putative class could (as Allstate acknowledges) bring a freestanding suit
asserting his individual claim. It is undoubtedly true that some plaintiffs who would not bring
individual suits for the relatively small sums involved will choose to join a class action. That has
no bearing, however, on Allstates or the plaintiffs legal rights. The likelihood that some (even
many) plaintiffs will be induced to sue by the availability of a class action is just the sort of
incidental effec[t] we have long held does not violate ' 2072(b), Mississippi Publishing, supra
at 445, 66 S.Ct. 242.
Allstate argues that Rule 23 violates ' 2072(b) because the state law it displaces, ' 901(b),
creates a right that the Federal Rule abridges-namely, a substantive right . . . not to be subjected
to aggregated class-action liability in a single suit. . . . To begin with, we doubt that that is so.
Nothing in the text of ' 901(b) (which is to be found in New Yorks procedural code) confines it
to claims under New York law; and of course New York has no power to alter substantive rights
and duties created by other sovereigns. As we have said, the consequence of excluding certain
class actions may be to cap the damages a defendant can face in a single suit, but the law itself
alters only procedure. In that respect, ' 901(b) is no different from a state law forbidding simple
joinder. As a fallback argument, Allstate argues that even if ' 901(b) is a procedural provision, it
was enacted for substantive reasons, id. at 24 (emphasis added). Its end was not to improve
the conduct of the litigation process itself but to alter the outcome of that process. Id. at 26.
The fundamental difficulty with both these arguments is that the substantive nature of New
Yorks law, or its substantive purpose, makes no difference. A Federal Rule of Procedure is not
valid in some jurisdictions and invalid in others-or valid in some cases and invalid in
others-depending upon whether its effect is to frustrate a state substantive law (or a state
procedural law enacted for substantive purposes). That could not be clearer in Sibbach:
The petitioner says the phrase [substantive rights in the Rules Enabling Act]
connotes more; that by its use Congress intended that in regulating procedure this Court
*should not deal with important and substantial rights theretofore recognized.
Recognized where and by whom? The state courts are divided as to the power in the
B.
THE ERIE DOCTRINE
53
absence of statute to order a physical examination. In a number such an order is

authorized by statute or rule. . . .
The asserted right, moreover, is no more important than many others enjoyed by
litigants in District Courts sitting in the several states before the Federal Rules of Civil
Procedure altered and abolished old rights or privileges and created new ones in
connection with the conduct of litigation. . . . If we were to adopt the suggested criterion
of the importance of the alleged right we should invite endless litigation and confusion
worse confounded. The test must be whether a rule really regulates procedure. . . .
312 U.S. at 13-14, 61 S.Ct. 422 (footnotes omitted).
Hanna unmistakably expressed the same understanding that compliance of a Federal Rule
with the Enabling Act is to be assessed by consulting the Rule itself, and not its effects in
individual applications:
[T]he court has been instructed to apply the Federal Rule, and can refuse to do so only if
the Advisory Committee, this Court, and Congress erred in their prima facie judgment
that the Rule in question transgresses neither the terms of the Enabling Act nor
constitutional restrictions.
380 U.S. at 471, 85 S.Ct. 1136.
In sum, it is not the substantive or procedural nature or purpose of the affected state law that
matters, but the substantive or procedural nature of the Federal Rule. We have held since
Sibbach, and reaffirmed repeatedly, that the validity of a Federal Rule depends entirely upon
whether it regulates procedure. See Sibbach, supra at 14, 61 S.Ct. 422; Hanna, supra at 464, 85
S.Ct. 1136; Burlington, 480 U.S. at 8, 107 S.Ct. 967. If it does, it is authorized by ' 2072 and is
valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon
state-created rights.
C
A few words in response to the concurrence. We understand it to accept the framework we
applyCwhich requires first, determining whether the federal and state rules can be reconciled
(because they answer different questions), and second, if they cannot, determining whether the
Federal Rule runs afoul of ' 2072(b). . . . The concurrence agrees with us that Rule 23 and '
901(b) conflict, . . . and departs from us only with respect to the second part of the test, i.e.,
whether application of the Federal Rule violates ' 2072(b) . . . . Like us, it answers no, but for a
reason different from ours. . . .
The concurrence would decide this case on the basis, not that Rule 23 is procedural, but that
the state law it displaces is procedural, in the sense that it does not function as a part of the
States definition of substantive rights and remedies. . . . A state procedural rule is not
preempted, according to the concurrence, so long as it is [not] so bound up with, or
sufficiently intertwined with, a substantive state-law right or remedy that it defines the scope
of that substantive right or remedy,. . . .
54
CH. 8
This analysis squarely conflicts with Sibbach, which established the rule we apply. The
concurrence contends that Sibbach did not rule out its approach, but that is not so. Recognizing
the impracticability of a test that turns on the idiosyncrasies of state law, Sibbach adopted and
applied a rule with a single criterion: whether the Federal Rule really regulates procedure. 312
U.S. at 14, 61 S.Ct. 422. 9 That the concurrences approach would have yielded the same result in
Sibbach proves nothing; what matters is the rule we did apply, and that rule leaves no room for
special exemptions based on the function or purpose of a particular state rule.10 We have rejected
an attempt to read into Sibbach an exception with no basis in the opinion, see Schlagenhauf, 379
U.S. at 113-114, 85 S.Ct. 234, and we see no reason to find such an implied limitation today.
In reality, the concurrence seeks not to apply Sibbach, but to overrule it (or, what is the same,
to rewrite it). Its approach, the concurrence insists, gives short shrift to the statutory text
forbidding the Federal Rules from abridg[ing], enlarg[ing], or modify[ing] any substantive
right, ' 2072(b). . . . There is something to that. It is possible to understand how it can be
determined whether a Federal Rule enlarges substantive rights without consulting State law: If
the Rule creates a substantive right, even one that duplicates some state-created rights, it
establishes a new federal right. But it is hard to understand how it can be determined whether a
Federal Rule abridges or modifies substantive rights without knowing what state-created
rights would obtain if the Federal Rule did not exist. Sibbachs exclusive focus on the challenged
Federal Ruledriven by the very real concern that Federal Rules which vary from State to State
would be chaos, see 312 U.S. at 13-14, 61 S.Ct. 422is hard to square with ' 2072(b)s terms. 11
9
The concurrence claims that in Sibbach [t]he Court . . . had no occasion to consider whether the
particular application of the Federal Rules in question would offend the Enabling Act.. . . Had Sibbach been
applying the concurrences theory, that is quite trueCwhich demonstrates how inconsistent that theory is with
Sibbach. For conformity with the Rules Enabling Act was the very issue Sibbach decided: The petitioners position
was that Rules 35 and 37 exceeded the Enabling Acts authorization, 312 U.S. at 9, 13, 61 S.Ct. 422; the Court faced
and rejected that argument, id. at 13-16, 61 S.Ct. 422, and proceeded to reverse the lower court for failing to apply
Rule 37 correctly, id. at 16, 61 S.Ct. 422. There could not be a clearer rejection of the theory that the concurrence
now advocates.
The concurrence responds that the [sic] the specific question of the obligation of federal courts to apply
the substantive law of a state was not before the Court . . . . It is clear from the context, however, that this passage
referred to the Erie prohibition of court-created rules that displace state law. The opinion unquestionably dealt with
the Federal Rules compliance with ' 2072(b), and it adopted the standard we apply here to resolve the question,
which does not depend on whether individual applications of the Rule abridge or modify state-law rights. See 312
U.S. at 13-14, 61 S.Ct. 422. To the extent Sibbach did not address the Federal Rules validity vis-a -vis contrary
state law, Hanna surely did, see 380 U.S. at 472, 85 S.Ct. 1136, and it made clear that Sibbachs test still controls,
see 380 U.S. at 464-465, 470-471, 85 S.Ct. 1136.
10
The concurrence insists that we have misread Sibbach, since surely a Federal Rule that in most cases
regulates procedure does not do so when it displaces one of those rare state substantive laws that are disguised as
rules of procedure. . . . This mistakes what the Federal Rule regulates for its incidental effects. As we have
explained, . . . most Rules have some effect on litigants substantive rights or their ability to obtain a remedy, but
that does not mean the Rule itself regulates those rights or remedies.
11
The concurrences approach, however, is itself unfaithful to the statutes terms. Section 2072(b) bans
abridgement or modification only of substantive rights, but the concurrence would prohibit pre-emption of
procedural rules that are intimately bound up in the scope of a substantive right or remedy, . . . This would allow
States to force a wide array of parochial procedures on federal courts so long as they are sufficiently intertwined
with a state right or remedy. . . .
55
CH. 8
Sibbach has been settled law, however, for nearly seven decades. 12 Setting aside any
precedent requires a special justification beyond a bare belief that it was wrong. Patterson v.
McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (internal
quotation marks omitted). And a party seeking to overturn a statutory precedent bears an even
greater burden, since Congress remains free to correct us, ibid., and adhering to our precedent
enables it do so, see, e.g., Finley v. United States, 490 U.S. 545, 556, 109 S.Ct. 2003, 104
L.Ed.2d 593 (1989); 28 U.S.C. ' 1367; Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S.
546, 558, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). We do Congress no service by presenting it a
moving target. In all events, Allstate has not even asked us to overrule Sibbach, let alone carried
its burden of persuading us to do so. Cf. IBP, Inc. v. Alvarez, 546 U.S. 21, 32, 126 S.Ct. 514, 163
L.Ed.2d 288 (2005). Why we should cast aside our decades-old decision escapes us, especially
since (as the concurrence explains) that would not affect the result. 13
12
The concurrence implies that Sibbach has slipped into desuetude, apparently for lack of sufficient
citations. . . . We are unaware of any rule to the effect that a holding of ours expires if the case setting it forth is not
periodically revalidated. In any event, the concurrences account of our shunning of Sibbach is greatly exaggerated.
Hanna did not merely cite the case, but recognized it as establishing the governing rule. 380 U.S. at 464-465,
470-471, 85 S.Ct. 1136. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 445-446, 66 S.Ct. 242, 90 L.Ed.
185 (1946), likewise cited Sibbach and applied the same test, examining the Federal Rule, not the state law it
displaced. True, Burlington Northern R. Co. v. Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987), and for that
matter Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 111 S.Ct. 922, 112
L.Ed.2d 1140 (1991), did not cite Sibbach. But both cited and followed Hanna-which as noted held out Sibbach as
setting forth the governing rule. See Burlington Northern, supra at 5-6, 8, 107 S.Ct. 967; Business Guides,supra at
552-554, 111 S.Ct. 922. Thus, while Sibbach itself may appear infrequently in the U.S. Reports, its rule-and in
particular its focus on the Federal Rule as the proper unit of analysis-is alive and well.
In contrast, Hannas obscure obiter dictum that a court need not wholly blind itself to a Federal Rules
effect on a cases outcome, 380 U.S. at 473, 85 S.Ct. 1136Cwhich the concurrence invokes twice . . . . has never
resurfaced in our opinions in the 45 years since its first unfortunate utterance. Nor does it cast doubt on Sibbachs
straightforward test: As the concurrence notes, Hanna cited Sibbach for that statement, 380 U.S. at 473, 85 S.Ct.
1136, showing it saw no inconsistency between the two.
13
The concurrence is correct . . . that under our disposition any rule that really regulates procedure,
Sibbach,supra at 14, 61 S.Ct. 422, will pre-empt a conflicting state rule, however bound up the latter is with
substantive law. The concurrence is wrong, however, that that result proves our interpretation of ' 2072(b)
implausible . . . . The result is troubling only if one stretches the term substantive rights in ' 2072(b) to mean not
only state-law rights themselves, but also any state-law procedures closely connected to them. Neither the text nor
our precedent supports that expansive interpretation. The examples the concurrence offersCstatutes of limitations,
burdens of proof, and standards for appellate review of damages awardsCdo not make its broad definition of
substantive rights more persuasive. They merely illustrate that in rare cases it may be difficult to determine whether
a rule really regulates procedure or substance. If one concludes the latter, there is no pre-emption of the state rule;
the Federal Rule itself is invalid.
The concurrences concern would make more sense if many Federal Rules that effectively alter state-law
rights bound up with procedures would survive under Sibbach. But as the concurrence concedes, . . ., very few
would do so. The possible existence of a few outlier instances does not prove Sibbachs interpretation is absurd.
Congress may well have accepted such anomalies as the price of a uniform system of federal procedure.
56
CH. 8
The concurrence also contends that applying Sibbach and assessing whether a Federal Rule
regulates substance or procedure is not always easy. . . . Undoubtedly some hard cases will arise
(though we have managed to muddle through well enough in the 69 years since Sibbach was
decided). But as the concurrence acknowledges . . . the basic difficulty is unavoidable: The
statute itself refers to substantive right[s], ' 2072(b), so there is no escaping the
substance-procedure distinction. What is more, the concurrences approach does nothing to
diminish the difficulty, but rather magnifies it many times over. Instead of a single hard question
of whether a Federal Rule regulates substance or procedure, that approach will present hundreds
of hard questions, forcing federal courts to assess the substantive or procedural character of
countless state rules that may conflict with a single Federal Rule. 14 And it still does not sidestep
the problem it seeks to avoid. At the end of the day, one must come face to face with the decision
whether or not the state policy (with which a putatively procedural state rule may be bound up)
pertains to a substantive right or remedy, . . . that is, whether it is substance or procedure. 15
The more one explores the alternatives to Sibbachs rule, the more its wisdom becomes apparent.
D
We must acknowledge the reality that keeping the federal-court door open to class actions
that cannot proceed in state court will produce forum shopping. That is unacceptable when it
comes as the consequence of judge-made rules created to fill supposed gaps in positive federal
law. See Hanna, 380 U.S. at 471-472, 85 S.Ct. 1136. For where neither the Constitution, a treaty,
nor a statute provides the rule of decision or authorizes a federal court to supply one, state law
must govern because there can be no other law. Ibid.; see Clark, Eries Constitutional Source,
95 Cal. L.Rev. 1289, 1302, 1311 (2007). But divergence from state law, with the attendant
consequence of forum shopping, is the inevitable (indeed, one might say the intended) result of a
uniform system of federal procedure. Congress itself has created the possibility that the same
case may follow a different course if filed in federal instead of state court. Cf. Hanna, 380 U.S.
at 472-473, 85 S.Ct. 1136. The short of the matter is that a Federal Rule governing procedure is
valid whether or not it alters the outcome of the case in a way that induces forum shopping. To
hold otherwise would be to disembowel either the Constitutions grant of power over federal
procedure or Congresss exercise of it. Id. at 473-474, 85 S.Ct. 1136.
14
The concurrence argues that its approach is no more taxing than ours because few if any Federal Rules
that are facially valid under the Enabling Act will fail the concurrences test. . . . But that conclusion will be
reached only after federal courts have considered hundreds of state rules applying the concurrences inscrutable
standard.
15
The concurrence insists that the task will be easier if courts can conside[r] the nature and functions of the
state law, . . . regardless of the laws form, . . ., i.e., what the law actually says. We think that amorphous inquiry
into the nature and functions of a state law will tend to increase, rather than decrease, the difficulty of classifying
Federal Rules as substantive or procedural. Walking through the concurrences application of its test to ' 901(b), . .
. gives little reason to hope that its approach will lighten the burden for lower courts.
B.
THE ERIE DOCTRINE
57
The judgment of the Court of Appeals is reversed, and the case is remanded for further
proceedings.
It is so ordered.
Justice STEVENS, concurring in part and concurring in the judgment.
The New York law at issue, N.Y. Civ. Prac. Law Ann. (CPLR) ' 901(b) (West 2006), is a
procedural rule that is not part of New Yorks substantive law. Accordingly, I agree with Justice
SCALIA that Federal Rule of Civil Procedure 23 must apply in this case and join Parts I and II-A
of the Courts opinion. But I also agree with Justice GINSBURG that there are some state
procedural rules that federal courts must apply in diversity cases because they function as a part
of the States definition of substantive rights and remedies.
I
It is a long-recognized principle that federal courts sitting in diversity apply state
substantive law and federal procedural law. Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136,
14 L.Ed.2d 8 (1965). This principle is governed by a statutory framework, and the way that it is
administered varies depending upon whether there is a federal rule addressed to the matter. See
id. at 469-472, 85 S.Ct. 1136. If no federal rule applies, a federal court must follow the Rules of
Decision Act, 28 U.S.C. ' 1652, and make the relatively unguided Erie choice, Hanna, 380
U.S. at 471, 85 S.Ct. 1136, to determine whether the state law is the rule of decision. But when
a situation is covered by a federal rule, the Rules of Decision Act inquiry by its own terms does
not apply. See ' 1652; Hanna, 380 U.S. at 471, 85 S.Ct. 1136. Instead, the Rules Enabling Act
(Enabling Act) controls. See 28 U.S.C. ' 2072.
That does not mean, however, that the federal rule always governs. Congress has provided
for a system of uniform federal rules, see ibid., under which federal courts sitting in diversity
operate as an independent system for administering justice to litigants who properly invoke its
jurisdiction, Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 537, 78 S.Ct. 893,
2 L.Ed.2d 953 (1958), and not as state-court clones that assume all aspects of state tribunals but
are managed by Article III judges. See Hanna, 380 U.S. at 473-474, 85 S.Ct. 1136. But while
Congress may have the constitutional power to prescribe procedural rules that interfere with state
substantive law in any number of respects, that is not what Congress has done. Instead, it has
provided in the Enabling Act that although [t]he Supreme Court may prescribe general rules
of practice and procedure, 2072(a), those rules shall not abridge, enlarge or modify any
substantive right, ' 2072(b). Therefore, [w]hen a situation is covered by one of the Federal
Rules, . . . the court has been instructed to apply the Federal Rule unless doing so would violate
the Act or the Constitution. Hanna, 380 U.S. at 471, 85 S.Ct. 1136.
Although the Enabling Act and the Rules of Decision Act say, roughly, that federal courts
are to apply state substantive law and federal procedural law, the inquiries are not the same.
Ibid.; see also id. at 469-470, 85 S.Ct. 1136. The Enabling Act does not invite federal courts to
engage in the relatively unguided Erie choice, id. at 471, 85 S.Ct. 1136, but instead instructs
only that federal rules cannot abridge, enlarge or modify any substantive right, ' 2072(b). The
Enabling Acts limitation does not mean that federal rules cannot displace state policy
58
CH. 8
judgments; it means only that federal rules cannot displace a States definition of its own rights
or remedies. See Sibbach v. Wilson & Co., 312 U.S. 1, 13-14, 61 S.Ct. 422, 85 L.Ed. 479 (1941)
(reasoning that the phrase substantive rights embraces only those state rights that are sought
to be enforced in the judicial proceedings). Congress has thus struck a balance: [H]ousekeeping
rules for federal courts will generally apply in diversity cases, notwithstanding that some federal
rules will inevitably differ from state rules. Hanna, 380 U.S. at 473, 85 S.Ct. 1136. But not
every federal rul[e] of practice or procedure, ' 2072(a), will displace state law. To the
contrary, federal rules must be interpreted with some degree of sensitivity to important state
interests and regulatory policies, Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, n.
7, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), and applied to diversity cases against the background
of Congress command that such rules not alter substantive rights and with consideration of the
degree to which the Rule makes the character and result of the federal litigation stray from the
course it would follow in state courts, Hanna, 380 U.S. at 473, 85 S.Ct. 1136. This can be a
tricky balance to implement.
It is important to observe that the balance Congress has struck turns, in part, on the nature of
the state law that is being displaced by a federal rule. And in my view, the application of that
balance does not necessarily turn on whether the state law at issue takes the form of what is
traditionally described as substantive or procedural. Rather, it turns on whether the state law
actually is part of a States framework of substantive rights or remedies. See ' 2072(b); cf.
Hanna, 380 U.S. at 471, 85 S.Ct. 1136 (The line between substance and procedure shifts as
the legal context changes); Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 89
L.Ed. 2079 (1945) (noting that the words substance and procedure [e]ach impl[y]
different variables depending upon the particular problem for which [they] are used).Applying
this balance, therefore, requires careful interpretation of the state and federal provisions at issue.
The line between procedural and substantive law is hazy, Erie R. Co. v. Tompkins, 304 U.S.
64, 92, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (Reed, J., concurring), and matters of procedure and
matters of substance are not mutually exclusive categories with easily ascertainable contents,
Sibbach, 312 U.S. at 17, 61 S.Ct. 422 (Frankfurter, J., dissenting). Rather, [ r]ules which
lawyers call procedural do not always exhaust their effect by regulating procedure, Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 555, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and in
some situations, procedure and substance are so interwoven that rational separation becomes
well-nigh impossible, id. at 559, 69 S.Ct. 1221 (Rutledge, J., dissenting). A state procedural
rule, though undeniably procedural in the ordinary sense of the term, may exist to influence
substantive outcomes, S.A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 60 F.3d 305,
310 (C.A.7 1995) (Posner, J.), and may in some instances become so bound up with the
state-created right or remedy that it defines the scope of that substantive right or remedy. Such
laws, for example, may be seemingly procedural rules that make it significantly more difficult to
bring or to prove a claim, thus serving to limit the scope of that claim. See, e.g., Cohen, 337 U.S.
at 555, 69 S.Ct. 1221 (state procedure that required plaintiffs to post bond before suing);
Guaranty Trust Co., 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (state statute of limitations). 4
4
Milam v. State Farm Mut. Auto. Ins. Co., 972 F.2d 166, 170 (C.A.7 1992) (Posner, J.) (holding that where
a state in furtherance of its substantive policy makes it more difficult to prove a particular type of state-law claim,
B.
THE ERIE DOCTRINE
59
Such procedural rules may also define the amount of recovery. See, e.g.,Gasperini, 518 U.S. at
427, 116 S.Ct. 2211 (state procedure for examining jury verdicts as means of capping the
available remedy); Moore ' 124.07[3][a] (listing examples of federal courts applying state laws
that affect the amount of a judgment).
In our federalist system, Congress has not mandated that federal courts dictate to state
legislatures the form that their substantive law must take. And were federal courts to ignore those
portions of substantive state law that operate as procedural devices, it could in many instances
limit the ways that sovereign States may define their rights and remedies. When a State chooses
to use a traditionally procedural vehicle as a means of defining the scope of substantive rights or
remedies, federal courts must recognize and respect that choice. Cf. Ragan v. Merchants
Transfer & Warehouse Co., 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) (Since
th[e] cause of action is created by local law, the measure of it is to be found only in local
law . . . . Where local law qualifies or abridges it, the federal court must follow suit).
II
When both a federal rule and a state law appear to govern a question before a federal court
sitting in diversity, our precedents have set out a two-step framework for federal courts to
negotiate this thorny area. At both steps of the inquiry, there is a critical question about what the
state law and the federal rule mean. The court must first determine whether the scope of the
federal rule is sufficiently broad to control the issue before the court, thereby leaving
no room for the operation of seemingly conflicting state law. See Burlington Northern R. Co. v.
Woods, 480 U.S. 1, 4-5, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987); Walker v. Armco Steel Corp., 446
U.S. 740, 749-750, and n. 9, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). If the federal rule does not
apply or can operate alongside the state rule, then there is no Ac[t] of Congress governing that
particular question, 28 U.S.C. ' 1652, and the court must engage in the traditional Rules of
Decision Act inquiry under Erie and its progeny. In some instances, the plain meaning of a
federal rule will not come into direct collision with the state law, and both can operate. . . .
the rule by which it does this, even if denominated a rule of evidence or cast in evidentiary terms, will be given
effect in a diversity suit as an expression of state substantive policy); Moore ' 124.09[2] (listing examples of
federal courts that apply state evidentiary rules to diversity suits). Other examples include state-imposed burdens of
proof.
60
CH. 8
In other instances, the rule when fairly construed, Burlington Northern R. Co., 480 U.S. at 4,
107 S.Ct. 967, with sensitivity to important state interests and regulatory policies, Gasperini,
518 U.S. at 427, n. 7, 116 S.Ct. 2211, will not collide with the state law. 5
If, on the other hand, the federal rule is sufficiently broad to control the issue before the
Court, such that there is a direct collision, Walker, 446 U.S. at 749-750, 100 S.Ct. 1978, the
court must decide whether application of the federal rule represents a valid exercise of the
rulemaking authority . . . bestowed on this Court by the Rules Enabling Act. Burlington
Northern R. Co., 480 U.S. at 5, 107 S.Ct. 967; see also Gasperini, 518 U.S. at 427, n. 7, 116
S.Ct. 2211; Hanna, 380 U.S. at 471-474, 85 S.Ct. 1136. That Act requires, inter alia, that federal
rules not abridge, enlarge or modify any substantive right. 28 U.S.C. ' 2072(b) (emphasis
added). Unlike Justice Scalia, I believe that an application of a federal rule that effectively
abridges, enlarges, or modifies a state-created right or remedy violates this command. Congress
may have the constitutional power to supplant state law with rules that are rationally capable
of classification as procedure, . . . but we should generally presume that it has not done so. Cf.
Wyeth v. Levine, 555 U.S. ___, ___, 129 S.Ct. 1187, 1194-95, 173 L.Ed.2d 51 (2009) (observing
that we start with the assumption that a federal statute does not displace a States law unless
that was the clear and manifest purpose of Congress (internal quotation marks omitted)).
Indeed, the mandate that federal rules shall not abridge, enlarge or modify any substantive
right evinces the opposite intent, as does Congress decision to delegate the creation of rules to
this Court rather than to a political branch, see 19 Charles Alan Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice and Procedure ' 4509, p. 265 (2d ed.1996) (hereinafter
Wright).
Thus, the second step of the inquiry may well bleed back into the first. When a federal rule
appears to abridge, enlarge, or modify a substantive right, federal courts must consider whether
the rule can reasonably be interpreted to avoid that impermissible result. See, e.g.,Semtek Intl
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)
(avoiding an interpretation of Federal Rule of Civil Procedure 41(b) that would arguably violate
the jurisdictional limitation of the Rules Enabling Act contained in ' 2072(b)). And when such
a saving construction is not possible and the rule would violate the Enabling Act, federal
courts cannot apply the rule. See 28 U.S.C. ' 2072(b) (mandating that federal rules shall not
alter any substantive right (emphasis added)); Hanna, 380 U.S. at 473, 85 S.Ct. 1136 ([A]
court, in measuring a Federal Rule against the standards contained in the Enabling Act . . . need
I thus agree with Justice Ginsburg . . . that a federal rule, like any federal law, must be interpreted in light
of many different considerations, including sensitivity to important state interests . . . and regulatory policies . . .
. See Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 37-38, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (Scalia,
J., dissenting) (We should assume . . . when it is fair to do so, that Congress is just as concerned as we have been to
avoid significant differences between state and federal courts in adjudicating claims . . . . Thus, in deciding whether
a federal . . . Rule of Procedure encompasses a particular issue, a broad reading that would create significant
disuniformity between state and federal courts should be avoided if the text permits). I disagree with Justice
Ginsburg, however, about the degree to which the meaning of federal rules may be contorted, absent congressional
authorization to do so, to accommodate state policy goals.
B.
THE ERIE DOCTRINE
61
not wholly blind itself to the degree to which the Rule makes the character and result of the
federal litigation stray from the course it would follow in state courts); see also Semtek Intl
Inc., 531 U.S. at 503-504, 121 S.Ct. 1021 (noting that if state law granted a particular right, the
federal courts extinguishment of that right . . . would seem to violate [' 2072(b)]); cf.
Statement of Justices Black and Douglas, 374 U.S. 865, 870 (1963) (observing that federal rules
as applied in given situations might have to be declared invalid). A federal rule, therefore,
cannot govern a particular case in which the rule would displace a state law that is procedural in
the ordinary use of the term but is so intertwined with a state right or remedy that it functions to
define the scope of the state-created right. And absent a governing federal rule, a federal court
must engage in the traditional Rules of Decision Act inquiry, under the Erie line of cases. This
application of the Enabling Act shows sensitivity to important state interests, . . . and
regulatory policies, . . . but it does so as Congress authorized, by ensuring that federal rules
that ordinarily prescribe general rules of practice and procedure, ' 2072(a), do not abridge,
enlarge or modify any substantive right, ' 2072(b).
Justice Scalia believes that the sole Enabling Act question is whether the federal rule really
regulates procedure, . . . which means, apparently, whether it regulates the manner and the
means by which the litigants rights are enforced, . . . . I respectfully disagree. 7 This
interpretation of the Enabling Act is consonant with the Acts first limitation to general rules of
practice and procedure, ' 2072(a). But it ignores the second limitation that such rules also not
abridge, enlarge or modify any substantive right, ' 2072(b) (emphasis added), 8 and in so doing
ignores the balance that Congress struck between uniform rules of federal procedure and respect
for a States construction of its own rights and remedies. It also ignores the separation-of-powers
presumption, see Wright ' 4509, at 265, and federalism presumption, see Wyeth, 555 U.S., at
___, 129 S.Ct. at 1194-95, that counsel against judicially created rules displacing state
substantive law. 9
7
This understanding of the Enabling Act has been the subject of substantial academic criticism, and
rightfully so. See, e.g., Wright ' 4509, at 264, 269-270, 272; Ely, The Irrepressible Myth of Erie, 87 Harv. L.Rev.
693, 719 (1974) (hereinafter Ely); see also R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechslers,
The Federal Courts and the Federal System 593, n. 6 (6th ed.2009) (discussing Ely).
8
Justice Scalia concedes as much . . ., but argues that insofar as I allow for the possibility that a federal rule
might violate the Enabling Act when it displaces a seemingly procedural state rule, my approach is itself unfaithful
to the statutes terms, which cover substantive rights but not procedural rules, . . . . This is not an objection to
my interpretation of the Enabling ActCthat courts must look to whether a federal rule alters substantive rights in a
given caseCbut simply to the way I would apply it, allowing for the possibility that a state rule that regulates
something traditionally considered to be procedural might actually define a substantive right. Justice Scalias
objection, moreover, misses the key point: In some instances, a state rule that appears procedural really is not. A rule
about how damages are reviewed on appeal may really be a damages cap. See Gasperini, 518 U.S. at 427, 116 S.Ct.
2211. A rule that a plaintiff can bring a claim for only three years may really be a limit on the existence of the right
to seek redress. A rule that a claim must be proved beyond a reasonable doubt may really be a definition of the scope
of the claim. These are the sorts of rules that one might describe as procedural, but they nonetheless define
substantive rights. Thus, if a federal rule displaced such a state rule, the federal rule would have altered the States
substantive rights.
9
The pluralitys interpretation of the Enabling Act appears to mean that no matter how bound up a state
provision is with the States own rights or remedies, any contrary federal rule that happens to regulate the manner
and the means by which the litigants rights are enforced, . . . must govern. There are many ways in which
62
CH. 8
Justice Scalia responds that some of these federal rules might be invalid under his view of the
Enabling Act because they may not really regulat[e] procedure.. . . . This response, of course,
highlights how empty the pluralitys test really is. . . . The response is also limited to those rules
that can be described as regulat[ing] substance . . .; it does not address those federal rules that
alter the right at issue in the litigation, see Sibbach v. Wilson & Co., 312 U.S. 1, 13-14, 61 S.Ct.
422, 85 L.Ed. 479 (1941), only when they displace particular state laws. Justice Scalia speculates
that Congress may well have accepted the occasional alteration of substantive rights as the
price of a uniform system of federal procedure. . . . Were we forced to speculate about the
balance that Congress struck, I might very well agree. But no speculation is necessary because
Congress explicitly told us that federal rules shall not alter any substantive right. ' 2072(b).
Although the plurality appears to agree with much of my interpretation of ' 2072, . . . it
nonetheless rejects that approach for two reasons, both of which are mistaken. First, Justice
SCALIA worries that if federal courts inquire into the effect of federal rules on state law, it will
enmesh federal courts in difficult determinations about whether application of a given rule would
displace a state determination about substantive rights. . . . I do not see why an Enabling Act
inquiry that looks to state law necessarily is more taxing than Justice Scalias. 10 But in any event,
that inquiry is what the Enabling Act requires: While it may not be easy to decide what is
actually a substantive right, the designations substantive and procedural become important,
for the Enabling Act has made them so. Ely 723; see also Wright ' 4509, at 266. The question,
therefore, is not what rule we think would be easiest on federal courts. The question is what rule
Congress established. Although, Justice Scalia may generally prefer easily administrable,
bright-line rules, his preference does not give us license to adopt a second-best interpretation of
the Rules Enabling Act. Courts cannot ignore text and context in the service of simplicity.
seemingly procedural rules may displace a States formulation of its substantive law. For example, statutes of
limitations, although in some sense procedural rules, can also be understood as a temporal limitation on legally
created rights; if this Court were to promulgate a federal limitations period, federal courts would still, in some
instances, be required to apply state limitations periods. Similarly, if the federal rules altered the burden of proof in a
case, this could eviscerate a critical aspectCalbeit one that deals with how a right is enforcedCof a States
framework of rights and remedies. Or if a federal rule about appellate review displaced a state rule about how
damages are reviewed on appeal, the federal rule might be pre-empting a state damages cap. Cf. Gasperini, 518 U.S.
at 427, 116 S.Ct. 2211.
10
It will be rare that a federal rule that is facially valid under 28 U.S.C. ' 2072 will displace a States
definition of its own substantive rights. See Wright ' 4509, at 272 (observing that unusual cases occasionally might
arise in which . . . because of an unorthodox state rule of law, application of a Civil Rule . . . would intrude upon
state substantive rights). Justice Scalias interpretation, moreover, is not much more determinative than mine.
Although it avoids courts having to evaluate state law, it tasks them with figuring out whether a federal rule is
really procedural. It is hard to know the answer to that question and especially hard to resolve it without
considering the nature and functions of the state law that the federal rule will displace. The pluralitys test is no
test at allCin a sense, it is little more than the statement that a matter is procedural if, by revelation, it is procedural.
Id.,' 4509 at 264.
B.
THE ERIE DOCTRINE
63
Second, the plurality argues that its interpretation of the Enabling Act is dictated by this
Courts decision in Sibbach, which applied a Federal Rule about when parties must submit to
medical examinations. But the plurality misreads that opinion. As Justice Harlan observed in
Hanna, shorthand formulations which have appeared in earlier opinions are prone to carry
untoward results that frequently arise from oversimplification. 380 U.S. at 475, 85 S.Ct. 1136
(concurring opinion). To understand Sibbach, it is first necessary to understand the issue that was
before the Court. The petitioner raised only the facial question whether Rules 35 and 37 [of the
Federal Rules of Civil Procedure] are . . . within the mandate of Congress to this court and not
the specific question of the obligation of federal courts to apply the substantive law of a
state. 11 312 U.S. at 9, 61 S.Ct.422. The Court, therefore, had no occasion to consider whether
the particular application of the Federal Rules in question would offend the Enabling Act. 12
Nor, in Sibbach, was any further analysis necessary to the resolution of the case because the
matter at issue, requiring medical exams for litigants, did not pertain to substantive rights
under the Enabling Act. Although most state rules bearing on the litigation process are adopted
for some policy reason, few seemingly procedural rules define the scope of a substantive right
or remedy. The matter at issue in Sibbach reflected competing federal and state judgments about
privacy interests. Those privacy concerns may have been weighty and in some sense substantive;
but they did not pertain to the scope of any state right or remedy at issue in the litigation. Thus,
in response to the petitioners argument in Sibbach that substantive rights include not only
rights sought to be adjudicated by the litigants but also general principle[s] or question[s] of
public policy that the legislature is able to pass upon, id. at 2-3, 61 S.Ct. 422, we held that the
phrase substantive rights embraces only state rights, such as the tort law in that case, that are
sought to be enforced in the judicial proceedings. Id. at 13-14, 61 S.Ct. 422. If the Federal Rule
had in fact displaced a state rule that was sufficiently intertwined with a state right or remedy,
11
The petitioner in Sibbach argued only that federal rules could not validly address subjects involving
important questions of policy, . . . In the petitioners own words, [t]his contention . . . [did] not in itself involve
the [applicable] law of Illinois, . . . and the petitioner in her briefing referenced the otherwise applicable state law
only to show that [she] was in a position to make the contention, . . ., that is, to show that the federal court was
applying a federal rule and not, under the Rules of Decision Act, applying state law . . . .
12
The plurality defends its view by including a long quote from two paragraphs of Sibbach . . . . But the
quoted passage of Sibbach describes only a facial inquiry into whether federal rules may deal with particular
subject matter. 312 U.S. at 13, 61 S.Ct. 422. The pluralitys block quote, moreover, omits half of one of the quoted
paragraphs, in which the Court explained that the term substantive rights in the Enabling Act certainly embraces
such rights as rights conferred by law to be protected and enforced, such as the right not to be injured in ones
person by anothers negligence and to redress [such] infraction. . . . . But whether a federal rule, for example,
enlarges the right to redress [an] infraction, will depend on the state law that it displaces.
64
CH. 8
then perhaps the Enabling Act analysis would have been different. 13 Our subsequent cases are
not to the contrary. 14
III
Justice Ginsburg views the basic issue in this case as whether and how to apply a federal rule
that dictates an answer to a traditionally procedural question (whether to join plaintiffs together
as a class), when a state law that defines the dimensions of a state-created claim dictates the
opposite answer. . . . As explained above, I readily acknowledge that if a federal rule displaces a
state rule that is procedural in the ordinary sense of the term, S.A. Healy Co., 60 F.3d at 310,
but sufficiently interwoven with the scope of a substantive right or remedy, there would be an
Enabling Act problem, and the federal rule would have to give way. In my view, however, this is
not such a case.
Rule 23 Controls Class Certification
When the District Court in the case before us was asked to certify a class action, Federal Rule
of Civil Procedure 23 squarely governed the determination whether the court should do so. That
is the explicit function of Rule 23. Rule 23, therefore, must apply unless its application would
abridge, enlarge, or modify New York rights or remedies.
13
Put another way, even if a federal rule in most cases really regulates procedure, Sibbach, 312 U.S. at
14, 61 S.Ct. 422, it does not really regulat[e] procedure when it displaces those rare state rules that, although
procedural in the ordinary sense of the term, operate to define the rights and remedies available in a case. This is
so because what is procedural in one context may be substantive in another. See Hanna, 380 U.S. at 471, 85 S.Ct.
1136; Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
14
Although this Courts decision in Hanna cited Sibbach, that is of little significance. Hanna did not hold
that any seemingly procedural federal rule will always govern, even when it alters a substantive state right; nor, as in
Sibbach, was the argument that I now make before the Court. Indeed, in Hanna we cited Sibbach>s statement that the
Enabling Act prohibits federal rules that alter the rights to be adjudicated by the litigants, 312 U.S. at 13-14, 61 S.Ct.
422, for the proposition that a court, in measuring a Federal Rule against the standards contained in the Enabling
Act . . . need not wholly blind itself to the degree to which the Rule makes the character and result of the federal
litigation stray from the course it would follow in state courts, 380 U.S. at 473, 85 S.Ct. 1136. And most of our
subsequent decisions that have squarely addressed the framework for applying federal rules in diversity cases have
not mentioned Sibbach at all but cited only Hanna. See, e.g.,Burlington Northern R. Co. v. Woods, 480 U.S. 1, 5,
107 S.Ct. 967, 94 L.Ed.2d 1 (1987).
Justice Scalia notes that in Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed.
185 (1946), we used language that supported his view. . . . But in that case, we contemplated only that the Federal
Rule in question might have incidental effects . . . upon the rights of litigants, explaining that [t]he fact that the
application of Rule 4(f) will operate to subject petitioners rights to adjudication by the district court for northern
Mississippi rather than southern Mississippi will undoubtedly affect those rights. 326 U.S. at 445-446, 66 S.Ct.
242. There was no suggestion that by affecting the method of enforcing the rights in that case, the federal rules could
plausibly abridge, enlarge, or modify the rights themselves.
B.
THE ERIE DOCTRINE
65
Notwithstanding the plain language of Rule 23, I understand the dissent to find that Rule 23
does not govern the question of class certification in this matter because New York has made a
substantive judgment that such a class should not be certified, as a means of proscribing
damages. Although, as discussed [below], I do not accept the dissents view of ' 901(b), I also
do not see how the dissents interpretation of Rule 23 follows from that view. 15 I agree with
Justice Ginsburg that courts should avoi[d] immoderate interpretations of the Federal Rules that
would trench on state prerogatives, . . . and should in some instances interpre[t] the federal
rules to avoid conflict with important state regulatory policies, . . . But that is not what the
dissent has done. Simply because a rule should be read in light of federalism concerns, it does
not follow that courts may rewrite the rule.
At bottom, the dissents interpretation of Rule 23 seems to be that Rule 23 covers only those
cases in which its application would create no Erie problem. The dissent would apply the Rules
of Decision Act inquiry under Erie even to cases in which there is a governing federal rule, and
thus the Act, by its own terms, does not apply. But [w]hen a situation is covered by one of the
Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie
choice. Hanna, 380 U.S. at 471, 85 S.Ct. 1136. The question is only whether the Enabling Act
is satisfied. Although it reflects a laudable concern to protect state regulatory policies, . . .
Justice Ginsburgs approach would, in my view, work an end run around Congress system of
uniform federal rules, see 28 U.S.C. ' 2072, and our decision in Hanna. Federal courts can and
should interpret federal rules with sensitivity to state prerogatives, . . . but even when state
interests . . . warrant our respectful consideration, . . . federal courts cannot rewrite the rules. If
my dissenting colleagues feel strongly that ' 901(b) is substantive and that class certification
should be denied, then they should argue within the Enabling Acts framework. Otherwise, the
Federal Rule applies regardless of contrary state law. Gasperini, 518 U.S. at 427, n. 7, 116 S.Ct.
2211; accord, Hanna, 380 U.S. at 471, 85 S.Ct. 1136.
15
Nor do I see how it follows from the dissents premises that a class cannot be certified. The dissent
contends that ' 901(b) is a damages limitation,. . . or proscription, . . ., whereas Rule 23 does not command
that a particular remedy be available when a party sues in a representative capacity, . . ., and that consequently both
provisions can apply. Yet even if the dissents premises were correct, Rule 23 would still control the question
whether petitioner may certify a class, and ' 901(b) would be relevant only to determine whether petitioner, at the
conclusion of a class-action lawsuit, may collect statutory damages.
It may be that if the dissents interpretation of ' 901(b) were correct, this class could not (or has not)
alleged sufficient damages for the federal court to have jurisdiction, see 28 U.S.C. ' 1332(d)(6). But that issue was
not raised in respondents motion to dismiss (from which the case comes to this Court), and it was not squarely
presented to the Court. In any event, although the lead plaintiff has acknowledged that its individual claim is for
less than the required amount in controversy, see 549 F.3d 137, 140 (C.A.2 2008), we do not know what actual
damages the entire class can allege. Thus, even if the Court were to adopt all of the dissents premises, I believe the
correct disposition would be to vacate and remand for further consideration of whether the required amount in
controversy has or can be met.
66
CH. 8
Applying Rule 23 Does Not Violate the Enabling Act

As I have explained, in considering whether to certify a class action such as this one, a
federal court must inquire whether doing so would abridge, enlarge, or modify New Yorks
rights or remedies, and thereby violate the Enabling Act. This inquiry is not always a simple one
because [i]t is difficult to conceive of any rule of procedure that cannot have a significant effect
on the outcome of a case, Wright ' 4508, at 232-233, and almost any rule can be said to have .
. . substantive effects, affecting societys distribution of risks and rewards, Ely 724, n. 170.
Faced with a federal rule that dictates an answer to a traditionally procedural question and that
displaces a state rule, one can often argue that the state rule was really some part of the States
definition of its rights or remedies.
In my view, however, the bar for finding an Enabling Act problem is a high one. The mere
fact that a state law is designed as a procedural rule suggests it reflects a judgment about how
state courts ought to operate and not a judgment about the scope of state-created rights and
remedies. And for the purposes of operating a federal court system, there are costs involved in
attempting to discover the true nature of a state procedural rule and allowing such a rule to
operate alongside a federal rule that appears to govern the same question. The mere possibility
that a federal rule would alter a state-created right is not sufficient. There must be little doubt.
The text of CPLR ' 901(b) expressly and unambiguously applies not only to claims based on
New York law but also to claims based on federal law or the law of any other State. And there is
no interpretation from New York courts to the contrary. It is therefore hard to see how ' 901(b)
could be understood as a rule that, though procedural in form, serves the function of defining
New Yorks rights or remedies. This is all the more apparent because lawsuits under New York
law could be joined in federal class actions well before New York passed ' 901(b) in 1975, and
New York had done nothing to prevent that. It is true, as the dissent points out, that there is a
limited amount of legislative history that can be read to suggest that the New York officials who
supported ' 901(b) wished to create a limitation on New Yorks statutory damages. . . . But,
as Justice Scalia notes, that is not the law that New York adopted. . . . 16
16
In its Erie analysis, the dissent observes that when sovereigns create laws, the enacting legislatures
sometimes assume those laws will apply only within their territory. . . . That is a true fact, but it does not do very
much work for the dissents position. For one thing, as the dissent observes, this Erie analysis is relevant only if
there is no conflict between Rule 23 and ' 901(b), and the court can thus apply both. . . . But because, in my view,
Rule 23 applies, the only question is whether it would violate the Enabling Act. See Hanna, 380 U.S. at 471, 85
S.Ct. 1136. And that inquiry is different from the Rules of Decision Act, or Erie, inquiry. See id. at 469-471, 85
S.Ct. 1136.
The dissents citations, moreover, highlight simply that when interpreting statutes, context matters. Thus,
we sometimes presume that laws cover only domestic conduct and sometimes do not, depending upon, inter alia,
whether it makes sense in a given situation to assume that the character of an act as lawful or unlawful must be
determined wholly by the law of the [place] where the act is done, American Banana Co. v. United Fruit Co., 213
U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826 (1909). But in the context of ' 901(b), a presumption against
extraterritoriality makes little sense. That presumption applies almost only to laws governing what people can or
cannot do. Section 901(b), however, is not directed to the conduct of persons but is instead directed to New York
courts. Thus, ' 901(b) is, by its own terms, not extraterritorial insofar as it states that it governs New York courts. It
is possible that the New York Legislature simply did not realize that New York courts hear claims under other
B.
THE ERIE DOCTRINE
67
The legislative history, moreover, does not clearly describe a judgment that ' 901(b) would
operate as a limitation on New Yorks statutory damages. In evaluating that legislative history, it
is necessary to distinguish between procedural rules adopted for some policy reason and
seemingly procedural rules that are intimately bound up in the scope of a substantive right or
remedy. Although almost every rule is adopted for some reason and has some effect on the
outcome of litigation, not every state rule defines the dimensions of [a] claim itself, . . . . New
York clearly crafted ' 901(b) with the intent that only certain lawsuits-those for which there
were not statutory penalties-could be joined in class actions in New York courts. That decision
reflects a policy judgment about which lawsuits should proceed in New York courts in a class
form and which should not. As Justice Ginsburg carefully outlines, . . . ' 901(b) was
apparently adopted in response to fears that the class-action procedure, applied to statutory
penalties, would lead to annihilating punishment of the defendant. V. Alexander, Practice
Commentaries, C901:11, reprinted in 7B McKinneys Consolidated Laws of New York Ann., p.
104 (2006) (internal quotation marks omitted); see also Sperry v. Crompton Corp., 8 N.Y.3d 204,
211, 831 N.Y.S.2d 760, 863 N.E.2d 1012, 1015 (2007). But statements such as these are not
particularly strong evidence that ' 901(b) serves to define who can obtain a statutory penalty or
that certifying such a class would enlarge New Yorks remedy. Any device that makes litigation
easier makes it easier for plaintiffs to recover damages.
In addition to the fear of excessive recoveries, some opponents of a broad class-action device
argued that there was no need to permit class actions in order to encourage litigation . . . when
statutory penalties . . . provided an aggrieved party with a sufficient economic incentive to
pursue a claim. Id., at 211, 831 N.Y.S.2d 760, 863 N.E.2d, at 1015 (emphasis added). But
those opponents may have felt merely that, for any number of reasons, New York courts should
not conduct trials in the class format when that format is unnecessary to motivate litigation. 17
Justice Ginsburg asserts that this could not be true because suits seeking statutory damages are
arguably best suited to the class device because individual proof of actual damages is
unnecessary. . . . But some people believe that class actions are inefficient or at least unfair,
insofar as they join together slightly disparate claims or force courts to adjudicate unwieldy
lawsuits. It is not for us to dismiss the possibility that New York legislators shared in those
beliefs and thus wanted to exclude the class vehicle when it appeared to be unnecessary.
sources of law and that other courts hear claims under New York law, and therefore mistakenly believed that they
had written a limit on New York remedies. But because New York set up ' 901(b) as a general rule about how its
courts operate, my strong presumption is to the contrary.
17
To be sure, one could imagine the converse story, that a legislature would create statutory penalties but
dictate that such penalties apply only when necessary to overcome the costs and inconvenience of filing a lawsuit,
and thus are not necessary in a class action. But it is hard to see how that narrative applies to New York, given that
New Yorks penalty provisions, on their face, apply to all plaintiffs, be they class or individual, and that ' 901(b)
addresses penalties that are created under any source of state or federal law.
68
CH. 8
The legislative history of ' 901 thus reveals a classically procedural calibration of making it
easier to litigate claims in New York courts (under any source of law) only when it is necessary
to do so, and not making it too easy when the class tool is not required. This is the same sort of
calculation that might go into setting filing fees or deadlines for briefs. There is of course a
difference of degree between those examples and class certification, but not a difference of kind;
the class vehicle may have a greater practical effect on who brings lawsuits than do low filing
fees, but that does not transform it into a damages proscription, . . . or limitation, . . . . 18
The difference of degree is relevant to the forum shopping considerations that are part of the
Rules of Decision Act or Erie inquiry. If the applicable federal rule did not govern the particular
question at issue (or could be fairly read not to do so), then those considerations would matter,
for precisely the reasons given by the dissent. . . . But that is not this case. As the Court
explained in Hanna, it is an incorrect assumption that the rule of Erie R. Co. v. Tompkins
constitutes the appropriate test of . . . the applicability of a Federal Rule of Civil Procedure. 380
U.S. at 469-470, 85 S.Ct. 1136. It is true that both the Enabling Act and the Erie rule say,
roughly, that federal courts are to apply state substantive law and federal procedural law, but
the tests are different and reflect the fact that they were designed to control very different sorts
of decisions. Id. at 471, 85 S.Ct. 1136.
Because Rule 23 governs class certification, the only decision is whether certifying a class in
this diversity case would abridge, enlarge or modify New Yorks substantive rights or
remedies. ' 2072(b). Although one can argue that class certification would enlarge New Yorks
limited damages remedy, . . . such arguments rest on extensive speculation about what the
New York Legislature had in mind when it created ' 901(b). But given that there are two
plausible competing narratives, it seems obvious to me that we should respect the plain textual
reading of ' 901(b), a rule in New Yorks procedural code about when to certify class actions
brought under any source of law, and respect Congress decision that Rule 23 governs class
certification in federal courts. In order to displace a federal rule, there must be more than just a
possibility that the state rule is different than it appears.
Accordingly, I concur in part and concur in the judgment.
Justice GINSBURG, with whom Justice KENNEDY, Justice BREYER, and Justice ALITO
join, dissenting.
....
The Court reads Rule 23 relentlessly to override New Yorks restriction on the availability of
statutory damages. Our decisions, however, caution us to ask, before undermining state
legislation: Is this conflict really necessary? Cf. Traynor, Is This Conflict Really Necessary? 37
Tex. L.Rev. 657 (1959). Had the Court engaged in that inquiry, it would not have read Rule 23 to
18
Justice Ginsburg asserts that class certification in this matter would transform a $500 case into a
$5,000,000 award. . . . . But in fact, class certification would transform 10,000 $500 cases into one $5,000,000
case. It may be that without class certification, not all of the potential plaintiffs would bring their cases. But that is
true of any procedural vehicle; without a lower filing fee, a conveniently located courthouse, easy-to-use federal
procedural rules, or many other features of the federal courts, many plaintiffs would not sue.
B.
THE ERIE DOCTRINE
69
collide with New Yorks legitimate interest in keeping certain monetary awards reasonably
bounded. I would continue to interpret Federal Rules with awareness of, and sensitivity to,
important state regulatory policies. Because todays judgment radically departs from that course,
I dissent.
I
A
Under the Erie doctrine, it is long settled, federal courts sitting in diversity apply state
substantive law and federal procedural law. Gasperini v. Center for Humanities, Inc., 518 U.S.
415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); see Erie R. Co. v. Tompkins, 304 U.S. 64, 58
S.Ct. 817, 82 L.Ed. 1188 (1938). Justice Harlan aptly conveyed the importance of the doctrine;
he described Erie as one of the modern cornerstones of our federalism, expressing policies that
profoundly touch the allocation of judicial power between the state and federal systems. Hanna
v. Plumer, 380 U.S. 460, 474, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (concurring opinion).
Although we have found Eries application sometimes [to be] a challenging endeavor,
Gasperini, 518 U.S. at 427, 116 S.Ct. 2211, two federal statutes mark our way.
The first, the Rules of Decision Act, prohibits federal courts from generating substantive law
in diversity actions. See Erie, 304 U.S. at 78, 58 S.Ct. 817. Originally enacted as part of the
Judiciary Act of 1789, this restraint serves a policy of prime importance to our federal system.
We have therefore applied the Act with an eye alert to . . . avoiding disregard of State law.
Guaranty Trust Co. v. York, 326 U.S. 99, 110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
The second, the Rules Enabling Act, enacted in 1934, authorizes us to prescribe general
rules of practice and procedure for the federal courts, but with a crucial restriction: Such rules
shall not abridge, enlarge or modify any substantive right. 28 U.S.C. ' 2072. Pursuant to this
statute, we have adopted the Federal Rules of Civil Procedure. In interpreting the scope of the
Rules, including, in particular, Rule 23, we have been mindful of the limits on our authority. See,
e.g.,Ortiz v. Fibreboard Corp., 527 U.S. 815, 845, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (The
Rules Enabling Act counsels against adventurous application of Rule 23; any tension with the
Act is best kept within tolerable limits.); Amchem Products, Inc. v. Windsor, 521 U.S. 591,
612-613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). See also Semtek Intl Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 503-504, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001).
If a Federal Rule controls an issue and directly conflicts with state law, the Rule, so long as it
is consonant with the Rules Enabling Act, applies in diversity suits. See Hanna, 380 U.S. at
469-474, 85 S.Ct. 1136. If, however, no Federal Rule or statute governs the issue, the Rules of
Decision Act, as interpreted in Erie, controls. That Act directs federal courts, in diversity cases,
to apply state law when failure to do so would invite forum-shopping and yield markedly
disparate litigation outcomes. See Gasperini, 518 U.S. at 428, 116 S.Ct. 2211; Hanna, 380 U.S.
at 468, 85 S.Ct. 1136. Recognizing that the Rules of Decision Act and the Rules Enabling Act
simultaneously frame and inform the Erie analysis, we have endeavored in diversity suits to
remain safely within the bounds of both congressional directives.
70
CH. 8
B
In our prior decisions in point, many of them not mentioned in the Courts opinion, we have
avoided immoderate interpretations of the Federal Rules that would trench on state prerogatives
without serving any countervailing federal interest. Application of the Hanna analysis, we
have said, is premised on a direct collision between the Federal Rule and the state law.
Walker v. Armco Steel Corp., 446 U.S. 740, 749-750, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980)
(quoting Hanna, 380 U.S. at 472, 85 S.Ct. 1136). To displace state law, a Federal Rule, when
fairly construed, must be sufficiently broad so as to control the issue before the court,
thereby leaving no room for the operation of that law. Burlington Northern R. Co. v. Woods,
480 U.S. 1, 4-5, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987) (quoting Walker, 446 U.S. at 749-750, and
n. 9, 100 S.Ct. 1978; emphasis added); cf. Stewart Organization, Inc. v. Ricoh Corp., 487 U.S.
22, 37-38, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (SCALIA, J., dissenting) ([I]n deciding
whether a federal . . . Rule of Procedure encompasses a particular issue, a broad reading that
would create significant disuniformity between state and federal courts should be avoided if the
text permits.).
In pre- Hanna decisions, the Court vigilantly read the Federal Rules to avoid conflict with
state laws. In Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943), for
example, the Court read Federal Rule 8(c), which lists affirmative defenses, to control only the
manner of pleading the listed defenses in diversity cases; as to the burden of proof in such cases,
Palmer held, state law controls.
Six years later, in Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct.
1233, 93 L.Ed. 1520 (1949), the Court ruled that state law determines when a diversity suit
commences for purposes of tolling the state limitations period. Although Federal Rule 3
specified that [a] civil action is commenced by filing a complaint with the court, we held that
the Rule did not displace a state law that tied an actions commencement to service of the
summons. Id. at 531-533, 69 S.Ct. 1233. The cause of action [wa]s created by local law, the
Court explained, therefore the measure of it [wa]s to be found only in local law. Id. at 533, 69
S.Ct. 1233.
Similarly in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93
L.Ed. 1528 (1949), the Court held applicable in a diversity action a state statute requiring
plaintiffs, as a prerequisite to pursuit of a stockholders derivative action, to post a bond as
security for costs. At the time of the litigation, Rule 23, now Rule 23.1, addressed a plaintiffs
institution of a derivative action in federal court. Although the Federal Rule specified
prerequisites to a stockholders maintenance of a derivative action, the Court found no conflict
between the Rule and the state statute in question; the requirements of both could be enforced,
the Court observed. See id., at 556, 69 S.Ct. 1221. Burdensome as the security-for-costs
requirement may be, Cohen made plain, suitors could not escape the upfront outlay by resorting
to the federal courts diversity jurisdiction.
In all of these cases, the Court stated in Hanna, the scope of the Federal Rule was not as
broad as the losing party urged, and therefore, there being no Federal Rule which covered the
point in dispute, Erie commanded the enforcement of state law. 380 U.S. at 470, 85 S.Ct. 1136.
B.
THE ERIE DOCTRINE
71
In Hanna itself, the Court found the clash unavoidable, ibid.; the petitioner had effected
service of process as prescribed by Federal Rule 4(d)(1), but that how-to method did not
satisfy the special Massachusetts law applicable to service on an executor or administrator. Even
as it rejected the Massachusetts prescription in favor of the federal procedure, however, [t]he
majority in Hanna recognized . . . that federal rules . . . must be interpreted by the courts
applying them, and that the process of interpretation can and should reflect an awareness of
legitimate state interests. R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechslers
The Federal Courts and the Federal System 593 (6th ed. 2009) (hereinafter Hart & Wechsler).
Following Hanna, we continued to interpre[t] the federal rules to avoid conflict with
important state regulatory policies. Hart & Wechsler 593. In Walker, the Court took up the
question whether Ragan should be overruled; we held, once again, that Federal Rule 3 does not
directly conflict with state rules governing the time when an action commences for purposes of
tolling a limitations period. 446 U.S. at 749-752, 100 S.Ct. 1978. Rule 3, we said, addresses only
the date from which various timing requirements of the Federal Rules begin to run, id. at 751,
100 S.Ct. 1978, and does not purpor[t] to displace state tolling rules, id. at 750-751, 100 S.Ct.
1978. Significant state policy interests would be frustrated, we observed, were we to read Rule 3
as superseding the state rule, which required actual service on the defendant to stop the clock on
the statute of limitations. Id. at 750-752, 100 S.Ct. 1978.
We were similarly attentive to a States regulatory policy in Gasperini. That diversity case
concerned the standard for determining when the large size of a jury verdict warrants a new trial.
Federal and state courts alike had generally employed a shock the conscience test in reviewing
jury awards for excessiveness. See 518 U.S. at 422, 116 S.Ct. 2211. Federal courts did so
pursuant to Federal Rule 59(a) which, as worded at the time of Gasperini, instructed that a trial
court could grant a new trial for any of the reasons for which new trials have heretofore been
granted in actions at law in the courts of the United States. Fed. Rule Civ. Proc. 59(a) (West
1995). In an effort to provide greater control, New York prescribed procedures under which jury
verdicts would be examined to determine whether they deviate[d] materially from what would
be reasonable compensation. See Gasperini, 518 U.S. at 423-425, 116 S.Ct. 2211 (quoting
CPLR ' 5501(c)). This Court held that Rule 59(a) did not inhibit federal-court accommodation
of New Yorks invigorated test.
Most recently, in Semtek, we addressed the claim-preclusive effect of a federal-court
judgment dismissing a diversity action on the basis of a California statute of limitations. The case
came to us after the same plaintiff renewed the same fray against the same defendant in a
Maryland state court. (Plaintiff chose Maryland because that States limitations period had not
yet run.) We held that Federal Rule 41(b), which provided that an involuntary dismissal
operate[d] as an adjudication on the merits, did not bar maintenance of the renewed action in
Maryland. To hold that Rule 41(b) precluded the Maryland courts from entertaining the case, we
said, would arguably violate the jurisdictional limitation of the Rules Enabling Act, 531 U.S. at
503, 121 S.Ct. 1021, and would in many cases violate [Erie s] federalism principle, id. at 504,
121 S.Ct. 1021.
In sum, both before and after Hanna, the above-described decisions show, federal courts
have been cautioned by this Court to interpre[t] the Federal Rules . . . with sensitivity to
72
CH. 8
important state interests, Gasperini, 518 U.S. at 427, n. 7, 116 S.Ct. 2211, and a will to avoid
conflict with important state regulatory policies, id. at 438, n. 22, 116 S.Ct. 2211 (internal
quotation marks omitted). 2 The Court veers away from that approachand conspicuously, its
most recent reiteration in Gasperiniin favor of a mechanical reading of Federal Rules,
insensitive to state interests and productive of discord.
C
Our decisions instruct over and over again that, in the adjudication of diversity cases, state
interestsCwhether advanced in a statute, e.g.,Cohen, or a procedural rule, e.g.,
GasperiniCwarrant our respectful consideration. Yet today, the Court gives no quarter to New
Yorks limitation on statutory damages and requires the lower courts to thwart the regulatory
policy at stake: To prevent excessive damages, New Yorks law controls the penalty to which a
defendant may be exposed in a single suit. The story behind ' 901(b)s enactment deserves
telling.
In 1975, the Judicial Conference of the State of New York proposed a new class-action
statute designed to set up a flexible, functional scheme that would provide an effective, but
controlled group remedy. Judicial Conference Report on CPLR, reprinted in 1975 N.Y. Laws
pp. 1477, 1493 (McKinney). As originally drafted, the legislation addressed only the procedural
aspects of class actions; it specified, for example, five prerequisites for certification, eventually
codified at ' 901(a), that closely tracked those listed in Rule 23. See CPLR ' 901(a) (requiring,
for class certification, numerosity, predominance, typicality, adequacy of representation, and
superiority).
While the Judicial Conference proposal was in the New York Legislatures hopper, various
groups advocated for the addition of a provision that would prohibit class action plaintiffs from
being awarded a statutorily-created penalty . . . except when expressly authorized in the pertinent
statute. Sperry v. Crompton Corp., 8 N.Y.3d 204, 211, 831 N.Y.S.2d 760, 863 N.E.2d 1012,
1015 (2007). These constituents feared that recoveries beyond actual damages could lead to
excessively harsh results. Ibid. They also argued that there was no need to permit class actions
. . . [because] statutory penalties . . . provided an aggrieved party with a sufficient economic
incentive to pursue a claim. Ibid. Such penalties, constituents observed, often far exceed a
plaintiffs actual damages. When lumped together, they argued, penalties and class actions
produce overkill. Attachment to Letter from G. Perkinson, New York State Council of Retail
Merchants, Inc., to J. Gribetz, Executive Chamber (June 4, 1975) (Legislative Report), Bill
Jacket, L. 1975, Ch. 207.
2
Justice Stevens stakes out common ground on this point: [F]ederal rules, he observes, must be
interpreted with some degree of sensitivity to important state interests and regulatory policies, . . . and applied to
diversity cases against the background of Congress command that such rules not alter substantive rights and with
consideration of the degree to which the Rule makes the character and result of the federal litigation stray from the
course it would follow in state courts, Hanna v. Plumer ], 380 U.S. [460, 473, 85 S.Ct. 1136, 14 L.Ed.2d 8
(1965)]. . . . But a majority of this Court, it bears emphasis, agrees that Federal Rules should be read with
moderation in diversity suits to accommodate important state concerns. . . .
B.
THE ERIE DOCTRINE
73
Aiming to avoid annihilating punishment of the defendant, the New York Legislature
amended the proposed statute to bar the recovery of statutory damages in class actions. V.
Alexander, Practice Commentaries, C901:11, reprinted in 7B McKinneys Consolidated Laws of
New York Ann., p. 104 (2006) (internal quotation marks omitted). In his signing statement,
Governor Hugh Carey stated that the new statute empowers the court to prevent abuse of the
class action device and provides a controlled remedy. Memorandum on Approving L. 1975, Ch.
207, reprinted in 1975 N.Y. Laws, at 1748 (emphasis added).
[T]he final bill . . . was the result of a compromise among competing interests. Sperry, 8
N.Y.3d at 211, 831 N.Y.S.2d 760, 863 N.E.2d at 1015. Section 901(a) allows courts leeway in
deciding whether to certify a class, but ' 901(b) rejects the use of the class mechanism to pursue
the particular remedy of statutory damages. The limitation was not designed with the fair
conduct or efficiency of litigation in mind. Indeed, suits seeking statutory damages are arguably
best suited to the class device because individual proof of actual damages is unnecessary. New
Yorks decision instead to block class-action proceedings for statutory damages therefore makes
scant sense, except as a means to a manifestly substantive end: Limiting a defendants liability in
a single lawsuit in order to prevent the exorbitant inflation of penalties-remedies the New York
Legislature created with individual suits in mind.
D
Shady Grove contendsCand the Court today agreesCthat Rule 23 unavoidably preempts New
Yorks prohibition on the recovery of statutory damages in class actions. The Federal Rule, the
Court emphasizes, states that Shady Groves suit may be maintained as a class action, which
conflicts with ' 901(b)s instruction that it may not so proceed. . . . Accordingly, the Court
insists, ' 901(b) cannot apply in diversity suits unless Rule 23 is ultra vires. Ibid. Concluding
that Rule 23 does not violate the Rules Enabling Act, the Court holds that the federal provision
controls Shady Groves ability to seek, on behalf of a class, a statutory penalty of over
$5,000,000. . . .
The Court, I am convinced, finds conflict where none is necessary. Mindful of the history
behind ' 901(b)s enactment, the thrust of our precedent, and the substantive-rights limitation in
the Rules Enabling Act, I conclude, as did the Second Circuit and every District Court to have
considered the question in any detail, that Rule 23 does not collide with ' 901(b). As the Second
Circuit well understood, Rule 23 prescribes the considerations relevant to class certification and
postcertification proceedingsbut it does not command that a particular remedy be available
when a party sues in a representative capacity. See 549 F.3d 137, 143 (2008). 5 Section 901(b), in
contrast, trains on that latter issue. Sensibly read, Rule 23 governs procedural aspects of class
5
Shady Grove projects that a dispensation in favor of Allstate would require courts in all diversity class
actions . . . [to] look to state rules and decisional law rather than to Rule 23 . . . in making their class certification
decisions.. . . This slippery-slope projection is both familiar and false. Cf. R. Bork, The Tempting of America 169
(1990) (Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.).
In this case, CPLR ' 901(a) lists the state-law prerequisites for class certification, but Allstate does not contend that
' 901(a) overrides Rule 23. . . . Federal courts sitting in diversity have routinely applied Rule 23>s certification
standards, rather than comparable state provisions. . . .
74
CH. 8
litigation, but allows state law to control the size of a monetary award a class plaintiff may
pursue.
In other words, Rule 23 describes a method of enforcing a claim for relief, while ' 901(b)
defines the dimensions of the claim itself. In this regard, it is immaterial that ' 901(b) bars
statutory penalties in wholesale, rather than retail, fashion. The New York Legislature could have
embedded the limitation in every provision creating a cause of action for which a penalty is
authorized; ' 901(b) operates as shorthand to the same effect. It is as much a part of the
delineation of the claim for relief as it would be were it included claim by claim in the New York
Code.
The Court single-mindedly focuses on whether a suit may or may not be maintained as a
class action. . . . Putting the question that way, the Court does not home in on the reason why.
Rule 23 authorizes class treatment for suits satisfying its prerequisites because the class
mechanism generally affords a fair and efficient way to aggregate claims for adjudication.
Section 901(b) responds to an entirely different concern; it does not allow class members to
recover statutory damages because the New York Legislature considered the result of
adjudicating such claims en masse to be exorbitant. 6 The fair and efficient conduct of class
litigation is the legitimate concern of Rule 23; the remedy for an infraction of state law, however,
is the legitimate concern of the States lawmakers and not of the federal rulemakers. Cf. Ely, The
Irrepressible Myth of Erie,87 Harv. L.Rev. 693, 722 (1974) (It is relevant whether the state
provision embodies a substantive policy or represents only a procedural disagreement with the
federal rulemakers respecting the fairest and most efficient way of conducting litigation.).
Suppose, for example, that a State, wishing to cap damages in class actions at $1,000,000,
enacted a statute providing that a suit to recover more than $1,000,000 may not be maintained
as a class action. Under the Courts reasoningwhich attributes dispositive significance to the
words may not be maintainedRule 23 would preempt this provision, nevermind that
Congress, by authorizing the promulgation of rules of procedure for federal courts, surely did not
intend to displace state-created ceilings on damages. 7 The Court suggests that the analysis might
differ if the statute limit[ed] the remedies available in an existing class action, . . . such that
Rule 23 might not conflict with a state statute prescribing that no more than $1,000,000 may be
recovered in a class action. There is no real difference in the purpose and intended effect of
6
The Court disputes the strength of the evidence of legislative intent . . ., but offers no alternative account
of ' 901(b)s purpose. Perhaps this silence indicates how very hard it would be to ascribe to ' 901(b) any purpose
bound up with the fairness and efficiency of processing cases. On its face, the proscription is concerned with
remedies, i.e., the availability of statutory damages in a lawsuit. Legislative history confirms this objective, but is
not essential to revealing it.
7
There is, of course, a difference between justly administering [a] remedy, Sibbach v. Wilson & Co., 312
U.S. 1, 14, 61 S.Ct. 422, 85 L.Ed. 479 (1941), and prescribing the content of that remedy; if Rule 23 can be read to
increase a plaintiffs recovery from $1,000,000 to some greater amount, the Rule has arguably enlarge[d] . . . [a]
substantive right in violation of the Rules Enabling Act. 28 U.S.C. ' 2072(b). The plurality appears to acknowledge
this point, stating that the Federal Rules we have found to be in compliance with the Act have not altered . . .
available remedies. . . . But the Courts relentless reading of Rule 23 today does exactly that: The Federal Rule, it
says, authorizes the recovery of class-size statutory damages even though the New York provision instructs that such
penalties shall not be available.
B.
THE ERIE DOCTRINE
75
these two hypothetical statutes. The notion that one directly impinges on Rule 23s domain,
while the other does not, fundamentally misperceives the office of Rule 23. 8
The absence of an inevitable collision between Rule 23 and ' 901(b) becomes evident once it
is comprehended that a federal court sitting in diversity can accord due respect to both state and
federal prescriptions. Plaintiffs seeking to vindicate claims for which the State has provided a
statutory penalty may pursue relief through a class action if they forgo statutory damages and
instead seek actual damages or injunctive or declaratory relief; any putative class member who
objects can opt out and pursue actual damages, if available, and the statutory penalty in an
individual action. . . . 9 See also Alexander, Practice Commentaries, at 105 (Even if a statutory
penalty or minimum recovery is involved, most courts hold that it can be waived, thus confining
the class recovery to actual damages and eliminating the bar of CPLR 901(b).). In this manner,
the Second Circuit explained, Rule 23s procedural requirements for class actions can be
applied along with the substantive requirement of CPLR 901(b). 549 F.3d, at 144. In sum, while
phrased as responsive to the question whether certain class actions may begin, ' 901(b) is
unmistakably aimed at controlling how those actions must end. On that remedial issue, Rule 23
is silent.
Any doubt whether Rule 23 leaves ' 901(b) in control of the remedial issue at the core of this
case should be dispelled by our Erie jurisprudence, including Hanna, which counsels us to read
Federal Rules moderately and cautions against stretching a rule to cover every situation it could
conceivably reach. 10 The Court states that [t]here is no reason . . . to read Rule 23 as addressing
only whether claims made eligible for class treatment by some other law should be certified as
class actions. . . . To the contrary, Palmer,Ragan,Cohen,Walker,Gasperini, and Semtek provide
good reason to look to the law that creates the right to recover. . . .That is plainly so on a more
accurate statement of what is at stake: Is there any reason to read Rule 23 as authorizing a claim
for relief when the State that created the remedy disallows its pursuit on behalf of a class? None
at all is the answer our federal system should give.
8
The Court states that [w]e cannot rewrite [a state law] to reflect our perception of legislative purpose. . .
. But we can, of course, interpret theFederal Rules in light of a States regulatory policy to decide whether and to
what extent a Rule preempts state law. . . . Just as we read Federal Rule 3 in Walker v. Armco Steel Corp., 446 U.S.
740, 751, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), not to govern when a suit commences for purposes of tolling a
state statute of limitations (although the Rule indisputably controls when an action commences for federal
procedural purposes), so too we could read Rule 23 not to direct when a class action may be maintained for purposes
of recovering statutory damages prescribed by state law. On this reading of Rule 23, no rewriting of ' 901(b) is
necessary to avoid a conflict.
9
The New York Legislature appears to have anticipated this result. In discussing the remedial bar effected
by ' 901(b), the bills sponsor explained that a statutory class action for actual damages would still be permissible.
S. Fink, [Sponsors] Memorandum, Bill Jacket, L. 1975, Ch. 207. See also State Consumer Protection Board
Memorandum (May 29, 1975), Bill Jacket, L. 1975, Ch. 207. On this understanding, New York courts routinely
authorize class actions when the class waives its right to receive statutory penalties. . . .
10
The plurality notes that we have rejected every statutory challenge to a Federal Rule that has come
before us. . . . But it omits that we have interpreted Rules with due restraint, including Rule 23, thus diminishing
prospects for the success of such challenges. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 842, 119 S.Ct. 2295, 144
L.Ed.2d 715 (1999); Amchem Products, Inc. v. Windsor, 521 U.S. 591, 612-613, 117 S.Ct. 2231, 138 L.Ed.2d 689
(1997) . . . .
76
CH. 8
. . . .By finding a conflict without considering whether Rule 23 rationally should be read to
avoid any collision, the Court unwisely and unnecessarily retreats from the federalism principles
undergirding Erie. Had the Court reflected on the respect for state regulatory interests endorsed
in our decisions, it would have found no cause to interpret Rule 23 so woodenly-and every
reason not to do so. Cf. Traynor, 37 Tex. L.Rev., at 669 (It is bad enough for courts to prattle
unintelligibly about choice of law, but unforgiveable when inquiry might have revealed that there
was no real conflict.).
II
Because I perceive no unavoidable conflict between Rule 23 and ' 901(b), I would decide
this case by inquiring whether application of the [state] rule would have so important an effect
upon the fortunes of one or both of the litigants that failure to [apply] it would be likely to cause
a plaintiff to choose the federal court. Hanna, 380 U.S. at 468, n. 9, 85 S.Ct. 1136. See
Gasperini, 518 U.S. at 428, 116 S.Ct. 2211.
Seeking to pretermit that inquiry, Shady Grove urges that the class-action bar in ' 901(b)
must be regarded as procedural because it is contained in the CPLR, which govern[s] the
procedure in civil judicial proceedings in all courts of the state. . . . Placement in the CPLR is
hardly dispositive. The provision held substantive for Erie purposes in Gasperini is also
contained in the CPLR (' 5501(c)), as are limitations periods, ' 201 et seq., prescriptions plainly
substantive for Erie purposes however they may be characterized for other purposes, see York,
326 U.S. at 109-112, 65 S.Ct. 1464. See also, e.g., 1 Restatement (Second) of Conflict of Laws '
133, Reporters Note, p. 369 (1969) (hereinafter Restatement) (Under the rule of Erie . . . the
federal courts have classified the burden of persuasion as to contributory negligence as a matter
of substantive law that is governed by the rule of the State in which they sit even though the
courts of that State have characterized their rule as procedural for choice-of-law purposes.);
Cook, Substance and Procedure in the Conflict of Laws, 42 Yale L.J. 333 (1933).
Shady Grove also ranks ' 901(b) as procedural because nothing in [the statute] suggests
that it is limited to rights of action based on New York state law, as opposed to federal law or the
law of other states; instead it applies to actions seeking penalties under any statute. . . .
It is true that ' 901(b) is not specifically limited to claims arising under New York law. But
neither is it expressly extended to claims arising under foreign law. The rule prescribes, without
elaboration either way, that an action to recover a penalty . . . may not be maintained as a class
action. We have often recognized that general words appearing in a statute may, in fact, have
limited application; [t]he words any person or persons, for example, are broad enough to
comprehend every human being. But general words must not only be limited to cases within the
jurisdiction of the state, but also to those objects to which the legislature intended to apply
them. United States v. Palmer, 3 Wheat. 610, 631, 4 L.Ed. 471 (1818) (opinion for the Court by
Marshall, C. J.). See also Small v. United States, 544 U.S. 385, 388, 125 S.Ct. 1752, 161 L.Ed.2d
651 (2005) (In law, a legislature that uses the statutory phrase any person may or may not
mean to include persons outside the jurisdiction of the state. (some internal quotation marks
B.
THE ERIE DOCTRINE
77
omitted)); Flora v. United States, 362 U.S. 145, 149, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) (The
term any sum is a catchall [phrase,] . . . but to say this is not to define what it catches.).
Moreover, Shady Grove overlooks the most likely explanation for the absence of limiting
language: New York legislators make law with New York plaintiffs and defendants in mind, i.e.,
as if New York were the universe. See Baxter, Choice of Law and the Federal System, 16 Stan.
L.Rev. 1, 11 (1963) ([L]awmakers often speak in universal terms but must be understood to
speak with reference to their constituents.); cf. Smith v. United States, 507 U.S. 197, 204, n. 5,
113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (presumption against extraterritoriality rooted in part in
the commonsense notion that Congress generally legislates with domestic concerns in mind).
The point was well put by Brainerd Currie in his seminal article on governmental interest
analysis in conflict-of-laws cases. The article centers on a now-archaic Massachusetts law that
prevented married women from binding themselves by contract as sureties for their husbands.
Discussing whether the Massachusetts prescription applied to transactions involving foreign
factors (a foreign forum, foreign place of contracting, or foreign parties), Currie observed:
When the Massachusetts legislature addresses itself to the problem of married women as
sureties, the undeveloped image in its mind is that of Massachusetts married women,
husbands, creditors, transactions, courts, and judgments. In the history of
Anglo-American law the domestic case has been normal, the conflict-of-laws case
marginal. Married Womens Contracts: A Study in Conflict-of-Laws Method, 25 U.
Chi. L.Rev. 227, 231 (1958) (emphasis added).
Shady Groves suggestion that States must specifically limit their laws to domestic rights of
action if they wish their enactments to apply in federal diversity litigation misses the obvious
point: State legislators generally do not focus on an interstate setting when drafting statutes. 12
....
Moreover, statutes qualify as substantive for Erie purposes even when they have
procedural thrusts as well. See, e.g.,Cohen, 337 U.S, at 555, 69 S.Ct. 1221; cf. Woods v.
Interstate Realty Co., 337 U.S. 535, 536-538, and n. 1, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949)
(holding diversity case must be dismissed based on state statute that, by its terms, governed only
proceedings in state court). Statutes of limitations are, again, exemplary. They supply
substantive law in diversity suits, see York, 326 U.S. at 109-112, 65 S.Ct. 1464, even though,
as Shady Grove acknowledges, state courts often apply the forums limitations period as a
12
Shady Groves argument that ' 901(b) is procedural based on its possible application to foreign claims is
also out of sync with our Erie decisions, many of them involving state statutes of similarly unqualified scope. The
New Jersey law at issue in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 544, n. 1, 69 S.Ct. 1221, 93
L.Ed. 1528 (1949), for example, required plaintiffs to post a bond as security for costs in any [stockholders
derivative] action. (quoting 1945 N.J. Laws ch. 131 (emphasis added)). See also, e.g.,Walker, 446 U.S. at 742-743,
and n. 4, 100 S.Ct. 1978 (Oklahoma statute deemed [a]n action commenced for purposes of the statute of
limitations upon service of the summons (quoting Okla. Stat., Tit. 12, ' 97 (1971))). Our characterization of a state
statute as substantive for Erie purposes has never hinged on whether the law applied only to domestic causes of
action. To the contrary, we have ranked as substantive a variety of state laws that the state courts apply to federal
and out-of-state claims, including statutes of limitations and burden-of-proof prescriptions. . . .
78
CH. 8
procedural bar to claims arising under the law of another State . . . .See also Restatement ''
142-143 (when adjudicating a foreign cause of action, State may use either its own or the foreign
jurisdictions statute of limitations, whichever is shorter). Similarly, federal courts sitting in
diversity give effect to state laws governing the burden of proving contributory negligence, see
Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943), yet state courts
adjudicating foreign causes of action often apply their own local law to this issue. See
Restatement ' 133 and Reporters Note.
In short, Shady Groves effort to characterize ' 901(b) as simply procedural cannot
successfully elide this fundamental norm: When no federal law or rule is dispositive of an issue,
and a state statute is outcome affective in the sense our cases on Erie (pre and post- Hanna)
develop, the Rules of Decision Act commands application of the States law in diversity suits.
Gasperini, 518 U.S. at 428, 116 S.Ct. 2211; Hanna, 380 U.S. at 468, n. 9, 85 S.Ct. 1136; York,
326 U.S. at 109, 65 S.Ct. 1464. As this case starkly demonstrates, if federal courts exercising
diversity jurisdiction are compelled by Rule 23 to award statutory penalties in class actions while
New York courts are bound by ' 901(b)s proscription, substantial variations between state and
federal [money judgments] may be expected. Gasperini, 518 U.S. at 430, 116 S.Ct. 2211
(quoting Hanna, 380 U.S. at 467-468, 85 S.Ct. 1136 (internal quotation marks omitted)). The
variation here is indeed substantial. Shady Grove seeks class relief that is ten thousand times
greater than the individual remedy available to it in state court. As the plurality acknowledges, . .
. forum shopping will undoubtedly result if a plaintiff need only file in federal instead of state
court to seek a massive monetary award explicitly barred by state law. See Gasperini, 518 U.S.
at 431, 116 S.Ct. 2211 (Erie precludes a recovery in federal court significantly larger than the
recovery that would have been tolerated in state court.). 13
The accident of diversity of citizenship, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), should not subject a defendant to such
augmented liability. See Hanna, 380 U.S. at 467, 85 S.Ct. 1136 (The Erie rule is rooted in part
in a realization that it would be unfair for the character or result of a litigation materially to differ
because the suit had been brought in a federal court.).
It is beyond debate that a statutory cap on damages would supply substantive law for Erie
purposes. Gasperini, 518 U.S. at 428, 116 S.Ct. 2211. See also id. at 439-440, 116 S.Ct. 2211
(Stevens, J., dissenting) (A state-law ceiling on allowable damages . . . is a substantive rule of
decision that federal courts must apply in diversity cases governed by New York law.); id. at
464, 116 S.Ct. 2211 (Scalia, J., dissenting) (State substantive law controls what injuries are
compensable and in what amount.). In Gasperini, we determined that New Yorks standard for
measuring the alleged excessiveness of a jury verdict was designed to provide a control
analogous to a damages cap. Id. at 429, 116 S.Ct. 2211. The statute was framed as a
procedural instruction, we noted, but the States objective [wa]s manifestly substantive. Ibid.
13
In contrast, many state rules ostensibly addressed to procedure, . . . (majority opinion)Cincluding

pleading standards and rules governing summary judgment, pretrial discovery, and the admissibility of certain
evidenceCwould not so hugely impact forum choices. It is difficult to imagine a scenario that would promote more
forum shopping than one in which the difference between filing in state and federal court is the difference between a
potential award of $500 and one of $5,000,000.
B.
THE ERIE DOCTRINE
79
Gasperinis observations apply with full force in this case By barring the recovery of
statutory damages in a class action, ' 901(b) controls a defendants maximum liability in a suit
seeking such a remedy. The remedial provision could have been written as an explicit cap: In
any class action seeking statutory damages, relief is limited to the amount the named plaintiff
would have recovered in an individual suit. That New Yorks Legislature used other words to
express the very same meaning should be inconsequential.
We have long recognized the impropriety of displacing, in a diversity action, state-law
limitations on state-created remedies. See Woods, 337 U.S. at 538, 69 S.Ct. 1235 (in a diversity
case, a plaintiff barred from recovery in the state court . . . should likewise be barred in the
federal court); York, 326 U.S. at 108-109, 65 S.Ct. 1464 (federal court sitting in diversity
cannot afford recovery if the right to recover is made unavailable by the State nor can it
substantively affect the enforcement of the right as given by the State). Just as Erie precludes a
federal court from entering a deficiency judgment when a State has authoritatively announced
that [such] judgments cannot be secured within its borders, Angel v. Bullington, 330 U.S. 183,
191, 67 S.Ct. 657, 91 L.Ed. 832 (1947), so too Erie should prevent a federal court from awarding
statutory penalties aggregated through a class action when New York prohibits this recovery. See
also Ragan, 337 U.S. at 533, 69 S.Ct. 1233
(Where local law qualifies or abridges [a claim], the federal court must follow suit. Otherwise
there is a different measure of the cause of action in one court than in the other, and the principle
of Erie . . . is transgressed.). In sum, because New York substantive law governs [this] claim
for relief, New York law . . . guide[s] the allowable damages. Gasperini, 518 U.S. at 437, 116
S.Ct. 2211. 14
III
The Courts erosion of Eries federalism grounding impels me to point out the large irony in
todays judgment. Shady Grove is able to pursue its claim in federal court only by virtue of the
recent enactment of the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. ' 1332(d). In
CAFA, Congress opened federal-court doors to state-law-based class actions so long as there is
minimal diversity, at least 100 class members, and at least $5,000,000 in controversy. Ibid. By
providing a federal forum, Congress sought to check what it considered to be the overreadiness
of some state courts to certify class actions. See, e.g.,S.Rep. No. 109-14, p. 4 (2005) (CAFA
prevents lawyers from gam[ing] the procedural rules [to] keep nationwide or multi-state class
actions in state courts whose judges have reputations for readily certifying classes. (internal
quotation marks omitted)); id. at 22 (disapproving the I never met a class action I didnt like
approach to class certification that is prevalent in state courts in some localities). In other
14
There is no question that federal courts can give effect to the substantive thrust of [' 901(b)] without
untoward alteration of the federal scheme for the trial and decision of civil cases. Gasperini, 518 U.S. at 426, 116
S.Ct. 2211. There is no risk that individual plaintiffs seeking statutory penalties will flood federal courts with
state-law claims that could be managed more efficiently on a class basis; the diversity statutes
amount-in-controversy requirement ensures that small state-law disputes remain in state court.
80
CH. 8
words, Congress envisioned fewer-not more-class actions overall. Congress surely never
anticipated that CAFA would make federal courts a mecca for suits of the kind Shady Grove has
launched: class actions seeking state-created penalties for claims arising under state law-claims
that would be barred from class treatment in the States own courts. Cf. Woods, 337 U.S. at 537,
69 S.Ct. 1235 ([T]he policy of Erie . . . preclude[s] maintenance in . . . federal court . . . of suits
to which the State ha[s] closed its courts.) 15 .
***
I would continue to approach Erie questions in a manner mindful of the purposes underlying
the Rules of Decision Act and the Rules Enabling Act, faithful to precedent, and respectful of
important state interests. I would therefore hold that the New York Legislatures limitation on
the recovery of statutory damages applies in this case, and would affirm the Second Circuits
judgment.
NOTES AND QUESTIONS
1. In Semtek, page 618 of the casebook, Justice Scalia interpreted Rule 41(b) narrowly to
provide a preclusive effect only in a second action in the same court in which the first dismissal
occurred. Was the interpretive methodology that he employed in Shady Grove to determine that
Rule 23 was applicable to the case consistent with the interpretive methodology that he
employed in Semtek? In Semtek, Justice Scalias interpretation of Rule 41(b) was apparently
motivated by fears that interpreting the rule to provide a preclusive effect would violate the
Rules Enabling Act. See casebook, page 625, Note 7. For this fear to be present, didnt he have
to take into account what Californias preclusion rule was and that Rule 41(b) would conflict
with it? Did this not result in a consideration of state law in interpreting Rule 41(b)? Was his
interpretive method in Shady Grove consistent with this? Given his interpretation of the
substantive rights restriction of the Rules Enabling Act in Shady Grove, how could there have
been any doubt about the validity of Rule 41(b) in Semtek that would require it to be construed in
so tortured a fashion?
2. Given that Justice Scalias opinion on the test for the validity of Federal Rules of Civil
Procedure in Shady Grove was a plurality opinion, how would you describe the holding of the
case? How would you describe the current, authoritative test for determining the validity of
Federal Rules of Civil Procedure under the Rules Enabling Act?
15
It remains open to Congress, of course, to exclude from federal-court jurisdiction under the Class Action
Fairness Act of 2005, 28 U.S.C. ' 1332(d), claims that could not be maintained as a class action in state court.
B.
THE ERIE DOCTRINE
81
3. Reconsider the case of Cohen v. Beneficial Industrial Loan Corp., described in the
casebook at pages 586-87, Note 3. In Cohen, the Court interpreted Rule 23 (today Rule 23.1) as
inapplicable to control the issue before it (the issue being whether the rule precluded the
application of a New Jersey statute providing that in shareholders derivative actions brought by
plaintiffs who owned less that 5% of a corporations stock, the plaintiffs had to pay the
defendants expenses, including attorneys fees, if the plaintiffs lost the action and that they
further had to post a bond to assure payment of the expenses). After stating the requirements that
Rule 23 placed on plaintiffs bringing derivative actions, the Court stated:
These provisions [of Rule 23] neither create nor exempt from liabilities, but require
complete disclosure to the court and notice to the parties in interest. None conflict with
the statute in question and all may be observed by a federal court, even if not applicable
in state court.
Cohen, 337 U.S. at 556. The Court then held that the Guaranty Trust outcome determinative test
compelled the application of the New Jersey statute. Why didnt Cohen control Shady Grove?
Shouldnt Justice Scalia at least have distinguished the case? Is it inevitable that Rule 23 must
be interpreted as providing a right to bring a class action when its requirements are met rather
than simply addressing the question of how a plaintiff must qualify an action for class treatment
when class treatment is not otherwise prohibited by law?
4. Was Justice Stevenss conclusion that the New York law was purely procedural plausible?
Didnt Justice Ginsburg have the better reasoned opinion on this issue? What would a state law
have to look like to meet Justice Stevens criteria for a state procedural rule bound up or
intertwined with substantive policies? If Justice Scalia had been willing to consider state law
when interpreting Rule 23, would he have agreed that the state law was purely procedural?
5. On the other hand, consider Justice Ginsburgs reasoning on the Rules of Decision Act
issue. Recall that she first interpreted Rule 23 as inapplicable to the issue, and then she inquired
whether failure to apply the New York rule Awould have so important an effect upon the fortunes
of one or both the litigants that failure to apply it would be likely to cause a plaintiff to choose a
federal court.@ 130 S. Ct. At 1469 (quoting Hanna, 380 U.S. 1431 n. 9). Was this forum
shopping inquiry appropriate in this kind of case? If Rule 23 is inapplicable, what would anyone
be shopping for a federal court to get? Shouldnt Justice Ginsburg simply have stated that, Rule
23 being inapplicable, the New York law was applicable because there was no other law to
apply? See Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.: Justice Whitten,
Nagging in Part and Declaring A Pox on All Houses, 44 CREIGHTON L. REV. 115, 136 - 37
(2010).
6. In Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010), plaintiff sued certain school system
employees for violation of her due process rights, and the defendants interposed the Maine antiSLAPP law as a defense by making a special motion to dismiss under the law. Anti-SLAPP laws
provide defendants with substantive and procedural defenses designed to prevent meritless suits
from imposing significant litigation costs and to prevent chilling constitutionally protected
speech. The issue was whether the anti-SLAPP law had to be applied in a federal action. In the
82
CH. 8
process of considering this question, the First Circuit Court of Appeals held that Fed. R. Civ. P.
12(b)(6) (providing for motions to dismiss for failure to state a claim upon which relief can be
granted) and 56 (governing summary judgment) were not so broad as to cover the issue within
the scope of the state statute and did not attempt to answer the same question as the state statute.
Rule 12 provides a mechanism to test the sufficiency of the complaint, while the state law
provides a mechanism for a defendant to move to dismiss a claim on an entirely different basis:
that the claims in question rest on the defendants protected petitioning conduct and that the
plaintiff cannot meet the special rules the state had created to protect such petitioning activity
from lawsuits. Rule 56 creates a process by which parties can secure judgment before trial on
the basis that there are no disputed issues of material fact and that one party is entitled to
judgment as a matter of law, but the state law serves the entirely different function of protecting
those specific defendants that have been targeted with litigation on the basis of their protected
speech and could not be said to control the same issues as Rule 56. Finally, citing Justice
Stevens opinion, the court stated that because the state law was so intertwined with a state right
or remedy that it functions to define the scope of the right, it could not be displaced by Rules 12
or 56 without creating a serious Rules Enabling Act issue. Are you persuaded by the courts
reasoning?
7. In Garman v. Campbell County School District No. 1, 630 F.3d 977 (10th Cir. 2010), cert.
denied, 132 S. Ct. 95 (U.S. Dec. 23, 2011), Wyoming law required that a person asserting a
claim against a governmental entity file a notice of the claim with the appropriate entity within a
particular time period and also specifically plead compliance with these requirements. This
pleading requirement had been interpreted by the Wyoming courts as a subject-matter
jurisdiction requirement. In a diversity action, the court of appeals held that the Wyoming
pleading requirement conflicted with the requirements of Fed. R. Civ. P. 8(a), requiring only Aa
short and plain statement of the grounds for the courts jurisdiction@ and that the Federal Rule
had to give way to avoid a Rules Enabling Act violation. The court again relied on Justice
Stevens opinion in Shady Grove. Should the court have considered Rule 8(a) to be applicable to
subject-matter jurisdiction issues under state law as opposed to only subject-matter jurisdiction
requirements under federal law? Was the courts confusion produced by Shady Grove or just
general misunderstanding of the Erie doctrine? If by general misunderstanding of the Erie
doctrine, was the misunderstanding produced by sloppy lawyering?
8.(a) In Goldberg v. Pacific Indemnity Co., 627 F.3d 752 (9th Cir. 2010), the defendant
made an offer of judgment under Fed. R. Civ. P. 68. If the plaintiff had won the action, but won
less than the offer, the defendant would have been entitled to costs under Rule 68. However, the
defendant won a judgment that the plaintiff take nothing, and the Supreme Court has construed
Rule 68 not to allow costs to the defendant under these circumstances. See Delta Airlines v.
August, 450 U.S 346 (1981). Arizona Rule of Civil Procedure 68, however, did allow double
costs and expert witness fees under the circumstances of the case, and the defendant asserted it
was entitled to recover the costs and fees under state law. The court of appeals held that Federal
Rule 68 occupied the field under these circumstances and prevented an award of costs under the
Arizona rule. The court did not engage in any analysis of whether Federal Rule 68 was valid
under the Rules Enabling Act
B.
THE ERIE DOCTRINE
83
(b) In Scottsdale Ins. Co. v. Tolliver, 636 F.3d 1273 (10th Cir. 2011), an insurer commenced
a declaratory judgment action seeking a determination that it was correct to deny the insureds
fire loss claim and seeking cancellation of the policy. The insured counterclaimed, seeking
damages for breach of contract and bad faith. The bad faith counterclaim was dismissed on
summary judgment. The insurer made an offer of judgment on the breach of contract
counterclaim, which the insured rejected. Thereafter, there was a jury trial and verdict for the
insurer on its cancellation claim and the insureds contract counterclaim. After a reversal by the
court of appeals and another judgment for the insurer, the insurer moved for an attorneys fee
award under an Oklahoma statute governing recovery of costs and fees after an offer of
judgment. The district court granted the motion. The court of appeals affirmed. The court held
that the filing requirements of the Oklahoma statute and Fed. R. Civ. P. 68 conflicted, because
the Oklahoma statute provided for filing the offer with the court regardless of whether it is
accepted, while Rule 68 precludes filing of the offer with the court if it is unaccepted. Therefore,
the provisions of Rule 68 governed the procedure for filing. However, the insurer had not filed
the unaccepted offer of judgment, so it had complied with Rule 68. The court concluded that
while it was improper for the district court to split the filing procedures for Rule 68 and the state
statute, it was not improper for the insurer to use Rule 68s procedure at the time it made the
offer of judgment because it was, in addition to asking for attorneys fees (which Rule 68 does
not provide for unless they are designated as Acosts@ under some other law) also asking for costs,
which Rule 68 does provide for. (Presumably, the correct procedure for the insurer to follow
was to ask for costs under Rule 68, without filing the unaccepted offer and explicitly ask for
attorneys fees under the state statute separately and file that unaccepted offer.) Ultimately, the
court held that Rule 68 was inapplicable to the case because the insured parties did not receive a
judgment in their favor for an amount less than the offer. See Delta Airlines, supra note 8(a).
Thus, the insurance company could not recover costs or attorneys fees under Rule 68. However,
the court viewed the Oklahoma statute as Asubstantive@ in the Erie sense, because disregard of
the statute would promote forum shopping by plaintiffs wanting to deny defending parties the
option of obtaining attorneys fees. The court thus affirmed the award of attorneys fees under
the Oklahoma statute.
(c) Do you agree with either the reasoning of Goldberg or the reasoning of Tolliver? As to
the parts of the cases determining whether Rule 68 was applicable and occupied the field, are the
cases consistent with each other? Are they consistent with Shady Grove? Cf. Southeast Floating
Docks, Inc. v. Auto-Owners Ins. Co., 80 So.3d 73 (Fla. 2012) (in answer to certified question
posed by federal court of appeals in a diversity action, the state court stated that the Florida offer
of judgment statute was substantive under Floridas conflict-of-laws rules and its application
was, therefore, trumped by a valid choice-of-law clause in a contract).
9. Shady Grove is discussed in ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN
CONFLICTS LAW ' 107, at 355 - 59 (6th Ed. 2011); LARRY L. TEPLY & RALPH U. WHITTEN,
CIVIL PROCEDURE at 501- 04, 527-33 (5th ed. 2013); see also, e.g., Craig T. Cagney, O Sonia,
Where Art Thou?: Why Justice Sotomayors Slient AOpinion@ Should Serve as Shady Groves
Holding, 80 FORDHAM L. REV. 189 (2011);Andrew J. Kazakes, Relatively Unguided: Examining
the precedential Value of the Plurality Decision in Shady Grove Orthopedic Associates v.
84
CH. 8
Allstate Insurance Co., and its Effect on Class Action Litigation, 44 LOY. L.A. L. REV. 1049
(2011); Linda S. Mullenix, Federal Class Actions: A Near-Death Experience in a Shady Grove,
79 GEO WASH L. REV. 448 (2011); Stephen B. Burbank & Tobias Barrington Wolff, Redeeming
the Missed Opportunities of Shady Grove, 159 U. PA. L. REV. 18 (2010); Symposium on Shady
Grove Orthopedic Associates v. Allstate Insurance: A Collection of Opinions, 44 CREIGHTON L.
REV. 1, 7 - 139 (2010) (containing articles by Professors Debra Lynn Bassett, Patrick J.
Borchers, Stan Cox, Richard D. Freer & Thomas Arthur, John B. Oakley, Jeffrey L. Rensberger,
Thomas D. Rowe, Jr., and Ralph U. Whitten).
10. Recent literature discussing other Erie problems includes Jeffrey O. Cooper, Summary
Judgment in the Shadow of Erie, 43 AKRON L. REV. 1245 (2010); Benjamin Grossberg,
Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice
Certificate of Merit Statutes, 159 U. PA. L. REV. 217 (2010); Wayne A. Logan, Erie and Federal
Criminal Courts, 6 VAND. L. REV. 1243 (2010) ); see also Margaret S. Thomas, Constraining
the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory
Interpretation, 16 N.Y.U. J. LEGIS. & PUB. POLY 187 (2013).
PROBLEM
Problem 8.13A. Reconsider Problem 8.3 in light of Shady Grove. Now does the federal
court have to apply the State Y affidavit of merit statute?
C. HORIZONTAL CHOICE OF LAW UNDER ERIE
[Substitute the following citatiosn for the citations to McDougal, Felix & Whitten and Teply
& Whitten in the middle of Note 2 on page 630.]
LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE at 469-77 (5th ed. 2013)
See also Koransky, Bouwer & Poracky, P.C. v. Bar Plan Mutual Ins. Co., 712 F.3d 336 (7th
Cir. 2013) (federal courts apply forum law when no one raises conflicts issue); Johnson v.
Priceline.com, Inc., 711 F.3d 271 (2d Cir. 2013) (federal courts apply forum law when no one
raises conflicts issue); Shay v. Walters, 702 F.3d 76 (1st Cir. 2012) (case would ordinarily raise
serious conflict of laws questions, but parties briefs assume sub silentio that Massachusetts law
controls); Michael Steven Green, Horizontal Erie and the Presumption of Forum Law, 109
MICH. L. REV. 1237 (2011).
C.
HORIZONTAL CHOICE OF LAW UNDER ERIE
85

Cf. Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 709 F.3d 872 (9th Cir. 2013)
(question of award of attorney fees is substantive for Erie purposes but not necessarily for state
conflict of laws purposes; Alaska considers issue procedural and thus Alaska law applies).
page 645.]
ed. 2011).
See also Anschtuz Corp. v. Merrill Lynch & Co., Inc., 690 F.3d 98 (2d Cir. 2012) (California
interest analysis applied to select New York law as applicable after transfer); Anderson v. Aon
Corp., 614 F.3d 361 (7th Cir. 2010) (California interest analysis applied to determine whether
California or Illinois law should be applied to a state claim within the supplemental jurisdiction
of the federal courts after transfer to Illinois under ' 1404(a); analysis concluded that under
Californias comparative impairment approach there was a true conflict and California would
apply its own law because it could do so without impairing any Illinois interests because Illinois
was Aon the fence@ about the kind of action involved while California permitted it!) Other recent
cases involving choice of law after transfer include Yelton v. PHI, Inc., 669 F.3d 577 (5th Cir.
2012) (Florida state action removed to Florida federal court and transferred to Louisiana federal
court in wrongful death action arising out of Louisiana helicopter crash; after transfer, Floridas
choice of law rules applied to select Louisiana law as applicable); Ruiz v. Affinity Logistics
Corp., 667 F.3d 1318 (9th Cir. 2012) (after transfer from one federal district court in California
to another, California conflict-of-laws rules were applied to void a choice of Georgia law in a
contract); Amica Mut. Ins. Co. v. Fogel, 656 F.3d.3d 167 (3d Cir. 2011) (Ferens makes it clear
that after sua sponte transfer, transferee court must apply the conflict-of-laws rules of the
transferor forum); cf. In re Codert Bros., LLP, 673 F.3d 180 (2d Cir. 2011) (federal bankruptcy
courts must apply the choice-of-law rules of the state where an underlying prepetition complaint
was filed when the claim before the court is wholly derived from another claim already pending
in a parallel out-of-state non-bankruptcy proceeding and the source claim was filed in a court
prior to the commencement of the bankruptcy case); cf. National Union Fire Ins. Co. of
Pittsburgh v. American Eurocopter Corp., 692 F.3d 405 (5th Cir. 2012) (after transfer from
Hawaii for lack of personal jurisdiction, Texas conflict of laws rules applied to select Texas law
as applicable to diversity action).
86
CH. 8
D. ASCERTAINING STATE LAW

[The indented quotation on page 647 in the first paragraph is now found in the following
source with minor stylistic modifications.]
2011).
[Insert at the end of the first full paragraph containing the indented quote on page 647.]
See generally Michael Steven Green, Eries Suppressed Premise, 95 MINN. L. REV. 111
(2011).
[Insert at the end of the carryover paragraph on page 650.]
See also Albano v. Shea Homes Ltd. Partnership, 662 F.3d 1120 (9th Cir. 2011) (after
Arizona Supreme Court answered certified question, party argued rule should be applied
prospectively only; court holds because party had not previously made this argument in a timely
fashion, it was waived); Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 632 F.3d 1195
(11th Cir. 2011) (certifying a question to the Florida Supreme Court as to whether the Florida
offer of judgment statute applied in a case in which there was a contractual choice-of-law clause
providing for the application of the substantive law of another state); David J. Bederman, Law of
the Land, Law of the Sea: The Lost Link Between Customary International Law and the General
Maritime Law, 51 VA. J. INTL L. 299 (2011); Haley N.Schaffer, Why Guess? Erie Guesses and
the Eighth Circuit, 36 WILLIAM MITCHELL L. REV. 1625 (2010).
E.
FEDERAL COMMON LAW AFTER ERIE

See also Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120
YALE L.J. 202 (2010); Symposium, Federal Courts Practice and Procedure: Re-Examining
Customary International Law and the Federal Courts, 85 NOTRE DAME L. REV. 1787-1982
(2010).
See also Mohamad v. Rajoub, ___ U.S. ___, 132 S. Ct. 1702 (2012) (refusing to recognize a
federal common law right against the PLO and the Palestinian Authority for the torture and death
of a United States citizen in Israel); Licci v. Lebanese Canadian Bank, SAL, 672 F.3d 155 (2d
Cir. 2012) (action under Alien Tort Claims Act based on terrorist rocket attacks in Israel; court
of appeals holds that as to supplemental claim for negligence against American defendant, New
E.
FEDERAL COMMON LAW AFTER ERIE
87
York choice of law rules apply and dictate the application of New York Law); Sarei v. Rio Tinto,
PLC, 671 F.3d 736 (9th Cir. 2011) (how to determine corporate liability under ATS); Doe VII v.
Exxon Mobile Corp., 654 F.3d 11 (D.C. Cir. 2011) (no corporate immunity for torts under ATS);
Rosaleen T. OGara, Procedural Dismissals Under the Alien Tort Statute, 52 ARIZ. L. REV. 797
(2010); see generally Symeon C. Symeonides, Choice of Law in the American Courts in 2011:
Twenty-Fifth Annual Survey, 60 Am. J. Comp. L. 357 - 62 (discussing ATS), 362 - 63
(discussing TVPA, including Rojoub, supra); Symeon C. Symeonides, Choice of Law in the
American Courts in 2010: Twenty-Fourth Annual Survey, 59 Am. J. Comp. L. 303, 316-17
(2011) (discussing other lower federal court cases under the Alien Tort Statute). Most recently,
the Supreme Court held that the ATS does not allow the courts to recognize liability, including
corporate liability, for actions committed within the territory of another sovereign. See Kiobel v.
Royal Dutch Petroleum Co., ___ U.S. ___, 133 S.Ct. 1659 (2013).
See also Marcus R. Bach-Armas, Laws Adrift: Anchoring Choice of Law Provisions in
Admiralty Torts, 17 U. MIAMI INTL & COMP. L. REV. 43 (2009).
*****
87
88
CH. 8
Chapter 9
JUDGMENTS
A. REVIEW OF BASIC PRECLUSION RULES
citations in the third full paragraph of this section on page 660.]
[Insert at the end of the Note on page 661.]
See also Max Minzner, Saving Stare Decisis: Preclusion, Precedent, and Procedural Due
Process, 2010 B.Y.U. L. REV. 597 (discussing potential constitutional problems in relying on
precedent to bind nonparties to prior decisions).
B. ENFORCEMENT OF STATE JUDGMENTS
1. The Full Faith and Credit Implementing Statute
2. Basic Policies and Exceptions
a. Basic Policies
See also Pirtek USA, L.L.C. v. Whitehead, 51 So.3d 291 (Ala. 2010) (after determining that
Florida court had jurisdiction to confirm arbitration award, it was error for lower court to
consider the merits of the Florida judgment); State v. Howard, 248 P.3d 722 (Idaho 2011) (state
may set a lesser requirements by which another states judicial records can be admitted into
evidence and proved than those set out in 28 U.S.C. ' 1738 (2006)).
[Substitute the following citation for the citation at the end of Note 4 on page 667.]
2011).
89
90
JUDGMENTS
CH. 9
b. Exceptiions and Potential Exceptions to the Basic Policies

(1)
General and Special Public Policy Exceptions
[Substitute the following citation for the McDougal, Felix & Whitten citation in the first
paragraph of this subsection on page 676.]
ed. 2011).
(2)
Lack of Personal Jurisdiction
[Substitute the following citations for the citations to McDougal, Felix & Whitten and Teply
& Whitten in Note 1 on page 693.]
[Insert at the end of the last paragraph on page 694.]

Compare Peoples Bank v. Frazee, 318 S.W.3d 121 (Mo. 2010) (personal jurisdiction
challenged in proceeding to register Oklahoma default judgment in Missouri; presumption that
foreign judgment rendered with personal jurisdiction and burden is on defendant to demonstrate
lack of jurisdiction; court examines personal jurisdiction and finds that personal jurisdiction was
validly asserted by Oklahoma, with the result that the judgment was valid and enforceable in
Missouri) with Maltas v. Maltas, 2 A.3d 902 (Conn. 2010) (proceeding to enforce Alaska default
judgment; initial burden on plaintiff-judgment creditor to demonstrate that Alaska properly
exercised personal jurisdiction under its own law and consistent with due process because
plaintiff moved for summary judgment).
2011).
page 697.]
2011).
B.
ENFORCEMENT OF STATE JUDGMENTS

(4)
91
Fraud
page 720.]
2011).
See Dustin B. Benham, Twombly and Iqbal Should (Finally) Put the Distinction Between
Intrinsic and Extrinsic Fraud Out of Its Misery, 64 S.M.U. L. REV. 649 (2011) (discussing U.S.
Supreme Court cases imposing a more stringent pleading requirement under the Federal Rules of
Civil Procedure and the effect of the cases on the intrinsic-extrinsic fraud distinction).
Cf. Robinson v. Estate of Harris, 698 S.E.2d 801 (S.C. 2010) (even if extrinsic fraud is
established, latches can prevent a judgment from being set aside).
[Insert the following correction in Problem 9.21 on page 721.]
The first sentence of the problem should state that P sues D in a state court of State X, not a
state court of State Y.
(5)
Statutes of Limitations

See also Fidelity National Financial, Inc. v. Friedman, 238 P.3d 118 (Ariz. 2010) (money
judgment from California U.S. District Court registered in Arizona; five years of collection
efforts and institution of new action in California ensued; collection efforts and new action did
not result in renewal of Arizona judgment, because this did not conform to renewal procedure in
Arizona, which required Aaction on the judgment@ itself); Grazer v. Jones, 294 P.3d 184 (Idaho
2013) (six-year time limitation on actions on foreign judgments does not apply to registration of
foreign judgments under Idahos Enforcement of Foreign Judgments Act].
(6)
Judgments Based on Penal Laws or Governmental Claims

See also Anthony Gray, Note, Enforcement of Punitive Damages Awards in the Convention
92
JUDGMENTS
CH. 9
on Choice of Court Agreements, 17 WILLAMETTE J. INTL L. & DISPUTE RES. 105, 131 (2009)
(arguable that punitive damages awards are not penal because they do not involve the assertion
of a government interest, but primarily a private interest, albeit an interest that has been
recognized in order to achieve some broader public ends).
[Insert the following after note 3(f) on page 729.]
(g) In City of Oakland v. Desert Outdoor Advertising, Inc., 267 P.3d 48 (Nev. 2011), the city
sued Desert Outdoor in a California court for unlawful business practices under California law
for failing to remove an outdoor billboard. The California court entered a civil judgment against
Desert Outdoor imposing civil statutory penalties against the company for $124,000, $263,000 in
disgorged profits, and $92,353 for costs and attorney fees. The city then filed the judgment in
Nevada district court seeking to enforce the judgment under Nevadas Uniform Enforcement of
Foreign Judgments Act. The Nevada trial court granted Desert Outdoors motion to set aside the
California judgment, concluding that it was not entitled to full faith and credit because it was a
penal judgment. The Nevada Supreme Court affirmed under Huntington, concluding that that
case was still valid and binding law that removed the judgment from the reach of the Full Faith
and Credit Clause altogether. A dissent in the case argued both that the judgment was
enforceable under the Full Faith and Credit Clause and that it should be enforced as a matter of
comity. The dissent concluded that the language in Huntington suggesting that another states
penal judgments were not enforceable as a matter of full faith and credit was dictum and that
Milwaukee County created doubt about the application of Huntington to another states civil
judgment for money. If California cannot enforce its law by suing Desert Outdoor in its own
courts and obtaining a judgment enforceable in Nevada, could it sue in Nevada, or would it be
met with a successful defense that the California law is unenforceable in a Nevada court because
of its penal nature? See Chapter 10C.3 of the casebook. If California sued in a California court
and obtained an injunction, would Nevada have to recognize and enforce the judgment, with
possible contempt proceedings against the company or its officers, under the Full Faith and
Credit Implementing Statute? See RESTATEMENT (SECOND) OF CONFLICT OF LAW ' 102 (1971).
[Substitute the following citation for the citation to McDougal, Felix & Whitten in Note 4(a)
on page 729.]
(7) Administrative Adjudications
See also Williams v. Leone & Keeble, Inc., 254 P.3d 818 (Wash. 2011) (after obtaining
workers compensation benefits in Idaho, injured worker brought a tort action in Washington
against a general contractor; the contractor objected that after award of benefits in Idaho, the
B.
ENFORCEMENT OF STATE JUDGMENTS
93
Washington court did not have jurisdiction over the action and the worker was precluded from
litigating the jurisdictional issue by the fact that he had filed in Washington; the Washington
Supreme Court disagreed, holding that the Washington courts had jurisdiction over the tort
action and that the issue of jurisdiction was not res judicata because there was no final
determination in Idaho and there was no record of an adjudicatory order issued by the Idaho
Industrial Commission in the files of the Idaho State Insurance Fund).
But cf. Martin v. American Colloid Co., 804 N.W.2d 65 (S.Dak. 2011) (South Dakota
Department of Labor did not have jurisdiction over a workers compensation proceeding in
which claimant hired in a neighboring state worked exclusively there and was injured there.).
See also Robidoux v. Muholland, 642 F.3d 20 (1st Cir. 2011) (Massachusetts employee
injured in Rhode Island while working for a Pennsylvania employer; employee sues employer
for negligence; Rhode Island workers compensation law would bar suit, but Massachusetts law
would not; held: Massachusetts has a more significant relationship to the occurrence and the
parties than does Rhode Island and, therefore, Massachusetts law applies; court was obviously
influenced by the fact that only Massachusetts had a resident involved in the action and that
Massachusetts had a strong interest in determining the compensation that resident would
receive); Ellis v. Trustmark Builders, Inc., 625 F.3d 222 (5th Cir. 2010) (worker, a resident of
Mississippi, was injured in Mississippi while working for an Alabama employer and collected
workers compensation benefits under Alabamas workers compensation law; worker then sued
owner, general contractor, and others in a tort action in Mississippi federal court; court of
appeals, applying Mississippis version of the second restatement test, held that Alabama
workers compensation law governed and remanded for a determination whether that law
provided tort immunity to defendants); Knapp v. Hamm & Phillips Serv. Co., Inc., 824 N.W.2d
785 (S.D. 2012) (worker injured in North Dakota and received benefits under North Dakota
workers compensation law; after later termination of benefits, workers applied for benefits
under South Dakota law; court held that South Dakota workers compensation law did not
provide for benefits because worker was not injured in state and South Dakota was not the state
of the employment relationship); cf. Sullivan v. Oracle Corp., 254 P.3d 237 (Cal. 2011) (Labor
Code overtime compensation statutes applied by their terms and under conflict-of-laws
principles to work performed in California by nonresidents); Tri-County Equipment & Leasing,
LLC v. Klinke, 286 P.3d 593 (Nev. 2012) (evidence of workers compensation medical payments
in California was admissible as exception to Nevadas collateral source rule to reduce damages
in personal injury action; evidence was admissible in both California and Nevada, so there was
no conflict and Nevada law applied); cf. Pro-Football, Inc. v. McCants, 51 A.3d 586 (Md. 2012)
(employee fell within territorial reach of Maryland workers compensation statute because he
was regularly employed in Maryland, even though he also practiced and played in other states);
94
JUDGMENTS
CH. 9
Pro-Football, Inc. v. Tupa, 51 A.3d 544 (Md. 2012) (choice-of-forum clause selecting Virginia
as forum in workers compensation proceeding rejected; workers compensation is not a private
matter to be arranged between two parties, but is a matter of public interest that cannot be altered
by individual agreement).
(8) Nonfinal and Modifiable Judgments
[Substitute the following citation for the citation to McDougal, Felix & Whitten in Note 2.(a)
on page 745.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW ' 43, at 155 - 57(6th ed.
2011).
C. ENFORCEMENT OF FEDERAL JUDGMENTS
[Substitute the following citation for the citation to McDougal, Felix & Whitten at the end of
the carryover textual paragraph on page 753.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW '' 49, at 174 - 75, 106
(6th ed. 2011).
D. ENFORECEMENT OF FOREIGN NATION JUDGMENTS
See also Markin v. Grohmann, 280 P.3d 726 (Idaho 2012) (Full Faith and Credit Clause does
not apply to judgment creditors action to recognize German judgment; German judgment
conflicted with prior diversity judgment of federal court in California, which had same
preclusive effect as California judgment; judgment was claim preclusive under California law;
thus German judgment should not have been enforced by trial court; no mention of last-in-time
rule).
See Lucien J. Dhooge, Afuinda v. ChevronTexaco: Mandatory Grounds for the NonRecognition of Foreign Judgments for Environmental Injury in the United States, 19 J.
TRANSNATL L. & POLICY 1 (2009); Thomas Kelly, An Unwise and Unmanageable
Anachronism: Why the Time Has Come to Eliminate Systemic Inadequacy as a Basis for
Nonrecognition of Foreign Judgments, 42 GEO. J. INTL L. 555 (2011).
D.
ENFORCEMENT OF FOREIGN NATION JUDGMENTS
95
Note 10(f) on page 763.]
2011).
[Insert the following at the end of Note 10(f) on page 763.]
On the general subject of the Hague convention, the enforcement of U.S. judgments abroad,
and the enforcement of foreign nation judgments, see Antonio Gidi, The Recognition of U.S.
Class Action Judgments Abroad: The Case of Latin America, BROOKLYN J. INTL L. 893 (2012);
Simona Grossi, Rethinking the Harmonization of Jurisdictional Rules, 86 TUL. L. REV. 623
(2012); Benjamin West Janke & Francois-/Xavier Licari, Enforcing Punitive Damages Awards
in France after Fountaine Pajot, 60 AM. J. COMP. L. 775 (2012); Marcus S. Quintanilla &
Christopher A. Whytock, The New Multipolarity in Transnational Litigation: Foreign Courts,
Foreign Judgments, and Foreign Law, 18 SW. J. INTL L. 31 (2011); Mark Stiggelbout, The
Recognition in England and Wales of United States Judgments in Class Actions, 52 HARV. INTL
L.J. 433 (2011); King Fung Tsang, Forum Shopping in European Insurance Litigation: A
Comparison Between Jurisdictional Rules in the European Union and the United States, 32 LOY.
L.A. INTL & COMP. L. REV. 239 (2010); Rhonda Wasserman, Transnational Class Actions and
Interjurisdictional Preclusion, 86 NOTRE DAME L. REV. 313 (2011).
See also Robert L.McFarland, Federalism, Finality, and Foreign Judgments: Examining the
ALI Judgments Projects Proposed Foreign Judgments Statute, 45 NEW. ENG. L. REV. 63 (2010);
Gregory H. Shill, Ending Judgments Arbitrage: Jurisdiction Competition and the Enforcement of
Foreign Money Judgments in the United States, ___ HARV. INTL L.J. ____ (forthcoming 2013).
[Insert new Notes 12A after Note 12(b) on page 764.]
12A. On August 10, 2010, Congress enacted the ASecuring the Protection of our Enduring
and Established Constitutional Heritage Act@ or the ASPEECH Act.@ See Pub. L. No. 111-223,
124 Stat. 2380. The Act adds new sections 4101- 4105 to Title 28 of the United States Code for
the purpose of prohibiting the enforcement of certain foreign nation judgments.
(a) Section 4101 contains a list of definitions for use in the remainder of the statute.
(b) Section 4102(a)(1)(A) provides that a state or federal court (domestic court) of the United
States Ashall not recognize or enforce@ a foreign judgment for defamation unless the court
determines that the defamation law applied in the foreign courts adjudication provided at least
as much protection for freedom of speech and press in the case leading to the judgment as the
first amendment to the Constitution of the United States and the law of the state in which the
U.S. court is located. Section 4102(a)(1)(B) further provides that the foreign nation judgment
96
JUDGMENTS
CH. 9
can be recognized and enforced even if the defamation law of the foreign nation did not provide
the kind of protection afforded by the U.S. Constitution and state law, as long as the party
opposing the recognition or enforcement of the foreign judgment would have been found liable
for defamation by a domestic court applying the First Amendment to the United States
Constitution of the United States and the constitution and law of the state in which the enforcing
court is located. Section 4102(a)(2) provides that the burden of making the showings required by
sections 4101(a)(1)(A) & (B) are on the party seeking recognition or enforcement of the foreign
judgment.
(c) Section 4102(b)(1) provides that a United States enforcing court may not recognize or
enforce a foreign judgment for defamation unless the enforcing court determines that the
exercise of personal jurisdiction by the foreign court Acomported with the due process
requirements that are imposed on domestic courts by the Constitution of the United States.
Section 4102(b)(2) provides that the party seeking recognition or enforcement of the foreign
defamation judgment bears the burden of making the showing that the foreign courts exercise of
personal jurisdiction comported with due process. Section 4102(d) provides that an appearance
by a party in the foreign court that renders the judgment of defamation does not deprive the party
of the right to oppose the recognition or enforcement of the judgment or represent a waiver of
any jurisdictional claims.
(d) Section 4102(c) (1) contains a prohibition on a federal or state court recognizing or
enforcing a foreign nation judgment for defamation against the provider of an interactive
computer service unless the enforcing court determines that the judgment would be consistent
with section 230 of the Communications Act of 1934, 47 U.S.C. ' 230 (2006), if the information
had been provided in the United States. Section 4102(c)(2) provides that the burden of
establishing that the judgment is consistent with section 230 is on the party seeking enforcement
of the judgment.
(e) Section 4103 provides certain special removal provisions for actions brought to enforce
foreign nation defamation judgments in state court in addition to the removal provisions in 28
U.S.C. ' 1441(2006), including removal on the basis of incomplete diversity of citizenship and
alienage.
(f) Section 4104(a) creates a new cause of action on behalf of the persons protected by the act
(i.e. AUnited States Persons@ as defined in section 4101(6)(A) - (D)). The new cause of action
permits declaratory judgments actions in United States District Courts to obtain declarations that
a foreign nation defamation judgment is repugnant to the Constitution or laws of the United
States (i.e. a judgment not enforceable under section 4102(a) - (c)). Section 4104(a)(2) places
the burden of establishing the unenforceability of the foreign nation judgment under 4102(a) - (c)
on the party bringing the action. Section 4104(b) provides for nationwide service of process in
the declaratory proceeding. In a special ASense of Congress@ resolution at the end of the bill,
Congress declared that it was the sense of Congress that pleading a Acause of action@ for
declaratory relief that a foreign nation defamation judgment was unenforceable constituted a case
or actual controversy under 28 U.S.C. ' 2101(a) (2006) (the Federal Declaratory Judgment Act).
96
D.
ENFORCEMENT OF FOREIGN NATION JUDGMENTS
97
(g) Section 4105 states that in an action brought in a state or federal court or removed to a
federal court to recognize enforce a foreign nation defamation action, the party opposing the
recognition or enforcement of the judgment should be allowed a reasonable attorneys fee if that
party prevails in the action on a ground specified under section 4102(a) - (c), Aabsent exceptional
circumstances.@
(h) Answer the following questions about this Act:
(1) What is the constitutional basis for the enactment of section 4201(a), described in
paragraph (b), above? (Remember, the Full Faith and Credit Clauses authorization to Congress
to declare the effect of judgments applies only to state judgments.) Is the source of constitutional
power the same whether the action to enforce the foreign nation defamation judgment is brought
in federal or state court?
(2) Section 4101(a) seems to create only defenses to actions on foreign judgments. If this
is true and a plaintiff sues on a foreign nation judgment in a federal court, what will be the basis
of federal subject-matter jurisdiction? Note that if federal question jurisdiction under 28 U.S.C.
' 1331 (2006) is not applicable, as it seems not to be, and if diversity (or alienage jurisdiction) is
not applicable, the action will have to be brought in state court. The defendant would then have
available more liberal, but not unlimited, removal options under new ' 4103 than exist under the
general removal statute, 28 U.S.C ' 1441 (2006). There is thus a distinct possibility that some
actions governed by the new act will have to be adjudicated in state court. If this occurs, could a
state court, pointing to the burden of proof, attorneys fees, and perhaps other provisions of the
Act, decline jurisdiction on the grounds that the Act runs so counter to its established judicial
machinery that it is unable to provide a forum?
(3) Was it necessary for Congress to enact a Asense of Congress@ resolution that the new
claim for declaratory relief created in section 4104 constitutes a case or controversy? If the
section would create a justiciable claim in the absence of this sense of Congress resolution, does
the resolution add anything? If the section would not create a justiciable claim in the absence of
the resolution, can the resolution create justiciability?
(i) For current discussion of Alibel tourism,@ see Lili Levi, The Problem of Transnational
Libel, 60 AM. J. COMP. L. 507 (2012).
[Insert after Note 14.(e) on page 765.]
(f) Currently the American Law Institute is engaged in an update of the restatement on the
U.S. law of commercial arbitration. See ALI RESTATEMENT OF THE LAW THIRD THE U.S. LAW
OF INTERNATIONAL COMMERCIAL ARBITRATION (Preliminary Draft No. 6; March 26, 2013).
*****
97
98
JUDGMENTS
CH. 9
Chapter 10
PERSONAL JURISDICTION
B. FOURTEENTH
AMENDMENT
JURISDICTION
RESTRICTIONS
ON
STATE-COURT
2. Development of Modern Restrictions on State-Court Jurisdiction

citations toward the end of the first paragraph on page 776.]
ROBERT L. FELIX & RALPH U. WHITTEN, AMERICAN CONFLICTS LAW ' 8, at 19 - 20 (6th ed.
FELIX & WHITTEN, supra, ' 8, at 20; TEPLY & WHITTEN, supra, at 238.
a. Status of Traditional Territorial Rules After
International Shoe
citations toward the end of Note 1 on page 805.]
99
100
CH. 10
b. General and Specific Jurisdiction

(1)
General Jurisdiction

GOODYEAR DUNLOP TIRES OPERATIONS, S. A. v. BROWN
United States Supreme Court
564 U.S. ___, 131 S. Ct. 2846 (2011)
GINSBURG delivered the opinion of the Court.
This case concerns the jurisdiction of state courts over corporations organized and operating
abroad. We address, in particular, this question: Are foreign subsidiaries of a United States
parent corporation amenable to suit in state court on claims unrelated to any activity of the
subsidiaries in the forum State?
A bus accident outside Paris that took the lives of two 13-year-old boys from North Carolina
gave rise to the litigation we here consider. Attributing the accident to a defective tire
manufactured in Turkey at the plant of a foreign subsidiary of The Goodyear Tire and Rubber
Company (Goodyear USA), the boys parents commenced an action for damages in a North
Carolina state court; they named as defendants Goodyear USA, an Ohio corporation, and three of
its subsidiaries, organized and operating, respectively, in Turkey, France, and Luxembourg.
Goodyear USA, which had plants in North Carolina and regularly engaged in commercial
activity there, did not contest the North Carolina courts jurisdiction over it; Goodyear USAs
foreign subsidiaries, however, maintained that North Carolina lacked adjudicatory authority over
them.
A state courts assertion of jurisdiction exposes defendants to the States coercive power, and
is therefore subject to review for compatibility with the Fourteenth Amendments Due Process
Clause. International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (assertion of
jurisdiction over out-of-state corporation must comply with traditional notions of fair play and
substantial justice (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940))). Opinions in the
wake of the pathmarking International Shoe decision have differentiated between general or
all-purpose jurisdiction, and specific or case-linked jurisdiction. Helicopteros Nacionales de
Colombia, S. A. v. Hall, 466 U. S. 408, 414, nn. 8, 9 (1984).
A court may assert general jurisdiction over foreign (sister-state or foreign-country)
corporations to hear any and all claims against them when their affiliations with the State are so
continuous and systematic as to render them essentially at home in the forum State. See
International Shoe, 326 U.S., at 317. Specific jurisdiction, on the other hand, depends on an
affiliatio[n] between the forum and the underlying controversy, principally, activity or an
occurrence that takes place in the forum State and is therefore subject to the State is regulation.
von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev.
1121, 1136 (1966) (hereinafter von Mehren & Trautman); see Brilmayer et al., A General Look
at General Jurisdiction, 66 Texas L. Rev. 721, 782 (1988) (hereinafter Brilmayer). In contrast to
B.
FOURTEENTH AMENDMENT RESTRICTIONS
101
general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues

deriving from, or connected with, the very controversy that establishes jurisdiction. von Mehren
& Trautman 1136.
Because the episode-in-suit, the bus accident, occurred in France, and the tire alleged to have
caused the accident was manufactured and sold abroad, North Carolina courts lacked specific
jurisdiction to adjudicate the controversy. The North Carolina Court of Appeals so
acknowledged. Brown v. Meter, 199 N.C. App. 50, 57-58, 681 S. E. 2d 382, 388 (2009). Were
the foreign subsidiaries nonetheless amenable to general jurisdiction in North Carolina courts?
Confusing or blending general and specific jurisdictional inquiries, the North Carolina courts
answered yes. Some of the tires made abroad by Goodyears foreign subsidiaries, the North
Carolina Court of Appeals stressed, had reached North Carolina through the stream of
commerce; that connection, the Court of Appeals believed, gave North Carolina courts the
handle needed for the exercise of general jurisdiction over the foreign corporations. Id., at 67-68,
681 S. E. 2d, at 394-395.
A connection so limited between the forum and the foreign corporation, we hold, is an
inadequate basis for the exercise of general jurisdiction. Such a connection does not establish the
continuous and systematic affiliation necessary to empower North Carolina courts to entertain
claims unrelated to the foreign corporations contacts with the State.
I
On April 18, 2004, a bus destined for Charles de Gaulle Airport overturned on a road outside
Paris, France. Passengers on the bus were young soccer players from North Carolina beginning
their journey home. Two 13-year-olds, Julian Brown and Matthew Helms, sustained fatal
injuries. The boys parents, respondents in this Court, filed a suit for wrongful-death damages in
the Superior Court of Onslow County, North Carolina, in their capacity as administrators of the
boys estates. Attributing the accident to a tire that failed when its plies separated, the parents
alleged negligence in the design, construction, testing, and inspection of the tire. 199 N. C.
App., at 51, 681 S. E. 2d, at 384 (internal quotation marks omitted).
Goodyear Luxembourg Tires, SA (Goodyear Luxembourg), Goodyear Lastikleri T. A. S.
(Goodyear Turkey), and Goodyear Dunlop Tires France, SA (Goodyear France), petitioners here,
were named as defendants. Incorporated in Luxembourg, Turkey, and France, respectively,
petitioners are indirect subsidiaries of Goodyear USA, an Ohio corporation also named as a
defendant in the suit. Petitioners manufacture tires primarily for sale in European and Asian
markets. Their tires differ in size and construction from tires ordinarily sold in the United States.
They are designed to carry significantly heavier loads, and to serve under road conditions and
speed limits in the manufacturers primary markets. 1
1
Respondents portray Goodyear USAs structure as a reprehensible effort to outsource all manufacturing,
and correspondingly, tort litigation, to foreign jurisdictions. See Brief for Respondents 51-53. Yet Turkey, where the
tire alleged to have caused the accident-in-suit was made, is hardly a strange location for a facility that primarily
supplies markets in Europe and Asia.
102
CH. 10
In contrast to the parent company, Goodyear USA, which does not contest the North Carolina
courts personal jurisdiction over it, petitioners are not registered to do business in North
Carolina. They have no place of business, employees, or bank accounts in North Carolina. They
do not design, manufacture, or advertise their products in North Carolina. And they do not
solicit business in North Carolina or themselves sell or ship tires to North Carolina customers.
Even so, a small percentage of petitioners tires (tens of thousands out of tens of millions
manufactured between 2004 and 2007) were distributed within North Carolina by other
Goodyear USA affiliates. These tires were typically custom ordered to equip specialized vehicles
such as cement mixers, waste haulers, and boat and horse trailers. Petitioners state, and
respondents do not here deny, that the type of tire involved in the accident, a Goodyear Regional
RHS tire manufactured by Goodyear Turkey, was never distributed in North Carolina.
Petitioners moved to dismiss the claims against them for want of personal jurisdiction. The
trial court denied the motion, and the North Carolina Court of Appeals affirmed.
Acknowledging that the claims neither related to, nor . . . ar[o]se from, [petitioners] contacts
with North Carolina, the Court of Appeals confined its analysis to general rather than specific
jurisdiction, which the court recognized required a higher threshold showing: A defendant
must have continuous and systematic contacts with the forum. Id., at 58, 681 S. E. 2d, at 388
(internal quotation marks omitted). That threshold was crossed, the court determined, when
petitioners placed their tires in the stream of interstate commerce without any limitation on the
extent to which those tires could be sold in North Carolina. Id., at 67, 681 S. E. 2d, at 394.
Nothing in the record, the court observed, indicated that petitioners took any affirmative
action to cause tires which they had manufactured to be shipped into North Carolina. Id., at 64,
681 S. E. 2d, at 392. The court found, however, that tires made by petitioners reached North
Carolina as a consequence of a highly-organized distribution process involving other
Goodyear USA subsidiaries. Id., at 67, 681 S. E. 2d, at 394. Petitioners, the court noted, made
no attempt to keep these tires from reaching the North Carolina market. Id., at 66, 681 S. E.
2d, at 393. Indeed, the very tire involved in the accident, the court observed, conformed to tire
standards established by the U. S. Department of Transportation and bore markings required for
sale in the United States. Ibid. 2 As further support, the court invoked North Carolinas interest
in providing a forum in which its citizens are able to seek redress for [their] injuries, and noted
the hardship North Carolina plaintiffs would experience [were they] required to litigate their
claims in France, a country to which they have no ties. Id., at 68, 681 S. E. 2d, at 394. The
North Carolina Supreme Court denied discretionary review. Brown v. Meter, 364 N. C. 128, 695
S. E. 2d 756 (2010).
We granted certiorari to decide whether the general jurisdiction the North Carolina courts
asserted over petitioners is consistent with the Due Process Clause of the Fourteenth
Amendment. . . .
Such markings do not necessarily show that any of the tires were destined for sale in the United States. To
facilitate trade, the Solicitor General explained, the United States encourages other countries to treat compliance
with [Department of Transportation] standards, including through use of DOT markings, as evidence that the
products are safely manufactured. Brief for United States as Amicus Curiae 32.
B.
103
II
A
The Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state
tribunals authority to proceed against a defendant. Shaffer v. Heitner, 433 U. S. 186, 207
(1977). The canonical opinion in this area remains International Shoe, 326 U. S. 310, in which
we held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state
defendant if the defendant has certain minimum contacts with [the State] such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice.
Id., at 316 (quoting Meyer, 311 U. S., at 463).
Endeavoring to give specific content to the fair play and substantial justice concept, the
Court in International Shoe classified cases involving out-of-state corporate defendants. First, as
in International Shoe itself, jurisdiction unquestionably could be asserted where the
corporations in-state activity is continuous and systematic and that activity gave rise to the
episode-in-suit. 326 U. S., at 317. Further, the Court observed, the commission of certain single
or occasional acts in a State may be sufficient to render a corporation answerable in that State
with respect to those acts, though not with respect to matters unrelated to the forum connections.
Id., at 318. The heading courts today use to encompass these two International Shoe categories is
specific jurisdiction. See von Mehren & Trautman 1144-1163. Adjudicatory authority is
specific when the suit aris[es] out of or relate[s] to the defendants contacts with the forum.
Helicopteros, 466 U. S., at 414, n. 8.
International Shoe distinguished from cases that fit within the specific jurisdiction
categories, instances in which the continuous corporate operations within a state [are] so
substantial and of such a nature as to justify suit against it on causes of action arising from
dealings entirely distinct from those activities. 326 U. S., at 318. Adjudicatory authority so
grounded is today called general jurisdiction. Helicopteros, 466 U. S., at 414, n. 9. For an
individual, the paradigm forum for the exercise of general jurisdiction is the individuals
domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly
regarded as at home. . . .
Since International Shoe, this Courts decisions have elaborated primarily on circumstances
that warrant the exercise of specific jurisdiction, particularly in cases involving single or
occasional acts occurring or having their impact within the forum State. . . .
In only two decisions postdating International Shoe . . . has this Court considered whether an
out-of-state corporate defendants in-state contacts were sufficiently continuous and systematic
to justify the exercise of general jurisdiction over claims unrelated to those contacts: Perkins v.
Benguet Consol. Mining Co., 342 U. S. 437 (1952) (general jurisdiction appropriately exercised
over Philippine corporation sued in Ohio, where the companys affairs were overseen during
World War II); and Helicopteros, 466 U. S. 408 (helicopter owned by Colombian corporation
crashed in Peru; survivors of U. S. citizens who died in the crash, the Court held, could not
maintain wrongful-death actions against the Colombian corporation in Texas, for the
corporations helicopter purchases and purchase-linked activity in Texas were insufficient to
subject it to Texas courts general jurisdiction).
104
CH. 10
B
To justify the exercise of general jurisdiction over petitioners, the North Carolina courts
relied on the petitioners placement of their tires in the stream of commerce. . . . The
stream-of-commerce metaphor has been invoked frequently in lower court decisions permitting
jurisdiction in products liability cases in which the product has traveled through an extensive
chain of distribution before reaching the ultimate consumer. . . . Typically, in such cases, a
nonresident defendant, acting outside the forum, places in the stream of commerce a product that
ultimately causes harm inside the forum. . . .
Many States have enacted long-arm statutes authorizing courts to exercise specific
jurisdiction over manufacturers when the events in suit, or some of them, occurred within the
forum state. For example, the Local Injury; Foreign Act subsection of North Carolinas
long-arm statute authorizes North Carolina courts to exercise personal jurisdiction in any action
claiming injury to person or property within this State arising out of [the defendants] act or
omission outside this State, if, in addition[,] at or about the time of the injury, [p]roducts . . .
manufactured by the defendant were used or consumed, within this State in the ordinary course
of trade. N. C. Gen. Stat. Ann. '1-75.4(4)(b) (Lexis 2009). As the North Carolina Court of
Appeals recognized, this provision of the States long-arm statute does not apply to this case,
for both the act alleged to have caused injury (the fabrication of the allegedly defective tire) and
its impact (the accident) occurred outside the forum. . . . 4
The North Carolina courts stream-of-commerce analysis elided the essential difference
between case-specific and all-purpose (general) jurisdiction. Flow of a manufacturers products
into the forum, we have explained, may bolster an affiliation germane to specific jurisdiction.
See, e.g., World-Wide Volkswagen [v. Woodson], 444 U. S., [286,] 297 (where the sale of a
product . . . is not simply an isolated occurrence, but arises from the efforts of the manufacturer
or distributor to serve . . . the market for its product in [several] States, it is not unreasonable to
subject it to suit in one of those States if its allegedly defective merchandise has there been the
source of injury to its owner or to others (emphasis added)). But ties serving to bolster the
exercise of specific jurisdiction do not warrant a determination that, based on those ties, the
forum has general jurisdiction over a defendant. See, e.g., Stabilisierungsfonds Fur Wein v.
Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F. 2d 200, 203, n. 5 (CADC 1981) (defendants
marketing arrangements, although adequate to permit litigation of claims relating to [their]
introduction of . . . wine into the United States stream of commerce, . . . would not be adequate
to support general, all purpose adjudicatory authority).
4
The court instead relied on N. C. Gen. Stat. Ann. '1-75.4(1)(d), see 199 N. C. App., at 57, 681 S. E. 2d, at
388, which provides for jurisdiction, whether the claim arises within or without [the] State, when the defendant
[i]s engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or
otherwise. This provision, the North Carolina Supreme Court has held, was intended to make available to the
North Carolina courts the full jurisdictional powers permissible under federal due process. Dillon v. Numismatic
Funding Corp., 291 N. C. 674, 676, 231 S. E. 2d 629, 630 (1977).
B.
105
A corporations continuous activity of some sorts within a state, International Shoe

instructed, is not enough to support the demand that the corporation be amenable to suits
unrelated to that activity. 326 U. S., at 318. Our 1952 decision in Perkins v. Benguet Consol.
Mining Co. remains [t]he textbook case of general jurisdiction appropriately exercised over a
foreign corporation that has not consented to suit in the forum. Donahue v. Far Eastern Air
Transport Corp., 652 F. 2d 1032, 1037 (CADC 1981).
Sued in Ohio, the defendant in Perkins was a Philippine mining corporation that had ceased
activities in the Philippines during World War II. To the extent that the company was
conducting any business during and immediately after the Japanese occupation of the
Philippines, it was doing so in Ohio: the corporations president maintained his office there, kept
the company files in that office, and supervised from the Ohio office the necessarily limited
wartime activities of the company. Perkins, 342 U. S., at 447-448. Although the claim-in-suit
did not arise in Ohio, this Court ruled that it would not violate due process for Ohio to adjudicate
the controversy. Ibid.; see Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 779-780, n. 11
(1984) (Ohios exercise of general jurisdiction was permissible in Perkins because Ohio was the
corporations principal, if temporary, place of business).
We next addressed the exercise of general jurisdiction over an out-of-state corporation over
three decades later, in Helicopteros. In that case, survivors of United States citizens who died in
a helicopter crash in Peru instituted wrongful-death actions in a Texas state court against the
owner and operator of the helicopter, a Colombian corporation. The Colombian corporation had
no place of business in Texas and was not licensed to do business there. Basically, [the
companys] contacts with Texas consisted of sending its chief executive officer to Houston for a
contract-negotiation session; accepting into its New York bank account checks drawn on a
Houston bank; purchasing helicopters, equipment, and training services from [a Texas
enterprise] for substantial sums; and sending personnel to [Texas] for training. 466 U. S., at
416. These links to Texas, we determined, did not constitute the kind of continuous and
systematic general business contacts . . . found to exist in Perkins, and were insufficient to
support the exercise of jurisdiction over a claim that neither ar[o]se out of . . . no[r] related to
the defendants activities in Texas. Id., at 415-416 (internal quotation marks omitted).
Helicopteros concluded that mere purchases [made in the forum State], even if occurring at
regular intervals, are not enough to warrant a States assertion of [general] jurisdiction over a
nonresident corporation in a cause of action not related to those purchase transactions. Id., at
418. We see no reason to differentiate from the ties to Texas held insufficient in Helicopteros,
the sales of petitioners tires sporadically made in North Carolina through intermediaries. Under
the sprawling view of general jurisdiction urged by respondents and embraced by the North
Carolina Court of Appeals, any substantial manufacturer or seller of goods would be amenable to
suit, on any claim for relief, wherever its products are distributed. But cf. World-Wide
Volkswagen, 444 U. S., at 296 (every seller of chattels does not, by virtue of the sale, appoint
the chattel his agent for service of process).
106
CH. 10
Measured against Helicopteros and Perkins, North Carolina is not a forum in which it would
be permissible to subject petitioners to general jurisdiction. Unlike the defendant in Perkins,
whose sole wartime business activity was conducted in Ohio, petitioners are in no sense at home
in North Carolina. Their attenuated connections to the State . . . fall far short of the the
continuous and systematic general business contacts necessary to empower North Carolina to
entertain suit against them on claims unrelated to anything that connects them to the State.
Helicopteros, 466 U. S., at 416. 5
C
Respondents belatedly assert a single enterprise theory, asking us to consolidate
petitioners ties to North Carolina with those of Goodyear USA and other Goodyear entities. . . .
In effect, respondents would have us pierce Goodyear corporate veils, at least for jurisdictional
purposes. See Brilmayer & Paisley, Personal Jurisdiction and Substantive Legal Relations:
Corporations, Conspiracies, and Agency, 74 Cal. L. Rev. 1, 14, 29-30 (1986) (merging parent
and subsidiary for jurisdictional purposes requires an inquiry comparable to the corporate law
question of piercing the corporate veil). But see 199 N. C. App., at 64, 681 S. E. 2d, at 392
(North Carolina Court of Appeals understood that petitioners are separate corporate entities not
directly responsible for the presence in North Carolina of tires that they had manufactured).
Neither below nor in their brief in opposition to the petition for certiorari did respondents urge
disregard of petitioners discrete status as subsidiaries and treatment of all Goodyear entities as a
unitary business, so that jurisdiction over the parent would draw in the subsidiaries as well. . . .
Respondents have therefore forfeited this contention, and we do not address it. . . .
. . . .For the reasons stated, the judgment of the North Carolina Court of Appeals is Reversed.
NOTES AND QUESTIONS
1. Does the Courts opinion clarify any of the problems of administration previously existing
with the doctrine of general jurisdiction? For example, does the Court address when a claim may
be said to be Arelated to@ the defendants contacts with the state as opposed to Aarising out@ of
those contacts? See Note 5 at page 813 of the casebook; see also Licci v. Lebanese Canadian
5
As earlier noted . . . the North Carolina Court of Appeals invoked the States well-recognized interest in
providing a forum in which its citizens are able to seek redress for injuries that they have sustained. 199 N. C.
App., at 68, 681 S. E. 2d, at 394. But [g]eneral jurisdiction to adjudicate has in [United States] practice never been
based on the plaintiffs relationship to the forum. There is nothing in [our] law comparable to article 14 of the
Civil Code of France (1804) under which the French nationality of the plaintiff is a sufficient ground for
jurisdiction. von Mehren & Trautman 1137; see Clermont & Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474,
492-495 (2006) (French law permitting plaintiff-based jurisdiction is rarely invoked in the absence of other
supporting factors). When a defendants act outside the forum causes injury in the forum, by contrast, a plaintiffs
residence in the forum may strengthen the case for the exercise of specific jurisdiction. See Calder v. Jones, 465 U.
S. 783, 788 (1984); von Mehren & Trautman 1167-1173.
B.
107
Bank, SAL, 672 F.3d 155 (2d Cir. 2012) (discussing the required connection between the
defendants activity in the forum and the plaintiffs claim). Does the Courts opinion clarify how
to determine when the defendants contacts rise to the level of Asystematic and continuous@ in
other cases?
2. Does the Courts analysis of the Perkins case support or undermine the interpretation
suggested by Note 2 on page 813 of the casebook?
3. If the single enterprise theory had been preserved, would the assertion of jurisdiction
have been valid? We may be about to find out. The Supreme Court has granted certiorari to the
Ninth Circuit in a case holding that general jurisdiction existed based on an agency relationship
between a domestic subsidiary and a foreign parent. See Bauman v. DaimlerChrysler Corp., 644
F.3d 909 (9th Cir. 2011), rehg & rehg en banc den., 676 F.ed 774 (9th Cir. 2011), cert. granted
sub nom. DaimlerChrysler AG, 2013 WL 1704716 (U.S. April 22, 2013).
4. See also Carol Andrews, Another Look at General Personal Jurisdiction, 47 WAKE
FOREST L. REV. 999 (2012); Patrick J. Borchers, J. McIntyre Machinery, Goodyear, and the
Incoherence of the Minimum Contacts Test, 44 CREIGHTON L. REV. 1245, 1268-69 (2011); Todd
David Peterson, The Timing of Minimum Contacts After Goodyear and McIntyre, 80 GEO.
WASH. L. REV.202 (2011); S. Wilson Quick, Staying Afloat in the Stream of Commerce:
Goodyear, McIntyre, and the Ship of Personal Jurisdiction, 37 N.C. J. INTL L. & COM. REG. 547
(2011); Charles W. ARocky@ Rhodes, Nineteenth Century Personal Jurisdiction Doctrine in a
Twenty-First Century World, 64 FLA. L. REV. 387 (2012) (discussing Goodyear and McIntyre,
infra); see generally Symposium, Personal Jurisdiction for the Twenty-First Century: The
Implications of McIntyre and Goodyear Dunlop Tires, 63 S.C. L. REV. 463 (2012).
(2)
Specific Jurisdiction

See also be2LLC v. Ivanov, 642 F.3d 555 (7th Cir. 2011) (specific jurisdiction did not exist
over defendant because all plaintiff submitted regarding defendants activity in Illinois was the
Internet printout showing that just twenty persons who listed Illinois addresses had at some point
created free dating profiles on defendants website; no evidence existed that defendant targeted
or exploited the market in the state.); Radio Systems Corp. v. Accession, Inc., 638 F.3d 785 (Fed.
Cir. 2011) (action for declaratory judgment of noninfringement of a patent in which defendant
challenged personal jurisdiction in Tennessee; contacts of defendant with plaintiff in attempting
to commercialize his product insufficient to establish specific jurisdiction.); Nuance
Communications, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed Cir. 2010) (Russian
competitiors distribution of software to California sister company for manufacture and
distribution along with statement by Russian competitiors chief executive officer in magazine
article that competitor intended to conquer United States market with software constituted
purposeful contacts directed at California plaintiff and patent infringement of softward claim
arose out of those contacts; thus, assertion of specific jurisdiction over defendant valid.);
Mobile Anesthesiologists Chi., LLC v. Anesthesia Assos. of Houston Metroplex, P.A., 623 F.3d
108
CH. 10
440 (7th Cir. 2010) (Texas-based anesthesiology provider did not purposefully direct its
activities to Illinois by maintaining a website with domain name similar to Illinois-based
providers trademark; Texas defendant did not form any contracts in Illinois, had no physical
presence there, doctor for defendant was not licensed outside Texas, and defendants activities
were aimed only at the Houston market.); but see uBid, zinc. v. GoDaddy Group, Inc., 623 F.3d
421, 433 (Manion,J., concuring) (7th Cir. 2010) (using Keeton analysis would subject defendant
to personal jurisdiction for plaintiffs cybersquatting claim in any state where the defendant
advertises and has customers, which could be every state in the United States; the Calder
analysis fits better with the harm alleged, because to have a claim under the Anti-cybersquatting
Consumer Protection Act requires a bad faith intent to profit from the registration or maintenance
of a domain name; thus, as the claim here involves targeted acts against the plaintiff in Illinois,
Calder sustains jurisdiction); Pavan Mchrotra, Back to the Basics: Why Traditional Principles of
Personal Jurisdiction Are Effective Today and Why Zippo Needs to Go, 12 N.C. J. L. & TECH.
229 (2010) (discussing the application of standard personal jurisdiction principles to internet
activities).
See also Dustin E. Buehler, Jurisdictional Incentives, 20 GEO. MASON L. REV. 105 (2012);
Kevin F. King, Personal Jurisdiction, Internet Commerce, and Privacy: The Pervasive Legal
Consequences of Modern Geolocation Technologies, 2011ALBANY L.J. OF SCI. & TECHNOLOGIES
61.
MCINTYRE MACHINERY, LTD. v. NICASTRO
United States Supreme Court.
564 U.S. ___, 131 S. Ct. 2780 (2011)
Justice KENNEDY announced the judgment of the Court and delivered an opinion, in which
THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join.
Whether a person or entity is subject to the jurisdiction of a state court despite not having
been present in the State either at the time of suit or at the time of the alleged injury, and despite
not having consented to the exercise of jurisdiction, is a question that arises with great frequency
in the routine course of litigation. The rules and standards for determining when a State does or
does not have jurisdiction over an absent party have been unclear because of decades-old
questions left open in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S.
102 (1987).
Here, the Supreme Court of New Jersey, relying in part on Asahi, held that New Jerseys
courts can exercise jurisdiction over a foreign manufacturer of a product so long as the
manufacturer knows or reasonably should know that its products are distributed through a
nationwide distribution system that might lead to those products being sold in any of the fifty
B.
109
states. Nicastro v. McIntyre Machinery America, Ltd., 201 N. J. 48, 76, 77, 987 A. 2d 575, 591,
592 (2010). Applying that test, the court concluded that a British manufacturer of scrap metal
machines was subject to jurisdiction in New Jersey, even though at no time had it advertised in,
sent goods to, or in any relevant sense targeted the State.
That decision cannot be sustained. Although the New Jersey Supreme Court issued an
extensive opinion with careful attention to this Courts cases and to its own precedent, the
stream of commerce metaphor carried the decision far afield. Due process protects the
defendants right not to be coerced except by lawful judicial power. As a general rule, the
exercise of judicial power is not lawful unless the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws. Hanson v. Denckla, 357 U. S. 235, 253 (1958). There may be
exceptions, say, for instance, in cases involving an intentional tort. But the general rule is
applicable in this products-liability case, and the so-called stream-of-commerce doctrine
cannot displace it.
I
This case arises from a products-liability suit filed in New Jersey state court. Robert Nicastro
seriously injured his hand while using a metal-shearing machine manufactured by J. McIntyre
Machinery, Ltd. (J. McIntyre). The accident occurred in New Jersey, but the machine was
manufactured in England, where J. McIntyre is incorporated and operates. The question here is
whether the New Jersey courts have jurisdiction over J. McIntyre, notwithstanding the fact that
the company at no time either marketed goods in the State or shipped them there. Nicastro was a
plaintiff in the New Jersey trial court and is the respondent here; J. McIntyre was a defendant and
is now the petitioner.
At oral argument in this Court, Nicastros counsel stressed three primary facts in defense of
New Jerseys assertion of jurisdiction over J. McIntyre. . . .
First, an independent company agreed to sell J. McIntyres machines in the United States. J.
McIntyre itself did not sell its machines to buyers in this country beyond the U. S. distributor,
and there is no allegation that the distributor was under J. McIntyres control.
Second, J. McIntyre officials attended annual conventions for the scrap recycling industry to
advertise J. Mc-Intyres machines alongside the distributor. The conventions took place in
various States, but never in New Jersey.
Third, no more than four machines (the record suggests only one . . . including the machine
that caused the injuries that are the basis for this suit, ended up in New Jersey.
....
In light of these facts, the New Jersey Supreme Court concluded that New Jersey courts
could exercise jurisdiction over petitioner without contravention of the Due Process Clause.
Jurisdiction was proper, in that courts view, because the injury occurred in New Jersey; because
petitioner knew or reasonably should have known that its products are distributed through a
nationwide distribution system that might lead to those products being sold in any of the fifty
110
CH. 10
states; and because petitioner failed to take some reasonable step to prevent the distribution of
its products in this State. Id., at 77, 987 A. 2d, at 592.
Both the New Jersey Supreme Courts holding and its account of what it called [t]he
stream-of-commerce doctrine of jurisdiction, id., at 80, 987 A. 2d, at 594, were incorrect,
however. This Courts Asahi decision may be responsible in part for that courts error regarding
the stream of commerce, and this case presents an opportunity to provide greater clarity.
II
The Due Process Clause protects an individuals right to be deprived of life, liberty, or
property only by the exercise of lawful power. Cf. Giaccio v. Pennsylvania, 382 U. S. 399, 403
(1966) (The Clause protect[s] a person against having the Government impose burdens upon
him except in accordance with the valid laws of the land). This is no less true with respect to
the power of a sovereign to resolve disputes through judicial process than with respect to the
power of a sovereign to prescribe rules of conduct for those within its sphere. See Steel Co. v.
Citizens for Better Environment, 523 U. S. 83, 94 (1998) (Jurisdiction is power to declare the
law). As a general rule, neither statute nor judicial decree may bind strangers to the State. Cf.
Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 608-609 (1990) (opinion of
SCALIA, J.) (invoking the phrase coram non judice, before a person not a judge meaning, in
effect, that the proceeding in question was not a judicial proceeding because lawful judicial
authority was not present, and could therefore not yield a judgment)
A court may subject a defendant to judgment only when the defendant has sufficient contacts
with the sovereign such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice. International Shoe Co. v. Washington, 326 U. S. 310, 316
(1945) (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940)). Freeform notions of fundamental
fairness divorced from traditional practice cannot transform a judgment rendered in the absence
of authority into law. As a general rule, the sovereigns exercise of power requires some act by
which the defendant purposefully avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws, Hanson, 357 U. S., at 253,
though in some cases, as with an intentional tort, the defendant might well fall within the States
authority by reason of his attempt to obstruct its laws. In products-liability cases like this one, it
is the defendants purposeful availment that makes jurisdiction consistent with traditional
notions of fair play and substantial justice.
A person may submit to a States authority in a number of ways. There is, of course, explicit
consent. E.g., Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694,
703 (1982). Presence within a State at the time suit commences through service of process is
another example. See Burnham, supra. Citizenship or domicile or, by analogy, incorporation or
principal place of business for corporations also indicates general submission to a States
powers. . . . Each of these examples reveals circumstances, or a course of conduct, from which
it is proper to infer an intention to benefit from and thus an intention to submit to the laws of the
forum State. Cf. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476 (1985). These examples
support exercise of the general jurisdiction of the States courts and allow the State to resolve
B.
111
both matters that originate within the State and those based on activities and events elsewhere.
Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414, and n. 9 (1984). By
contrast, those who live or operate primarily outside a State have a due process right not to be
subjected to judgment in its courts as a general matter.
There is also a more limited form of submission to a States authority for disputes that arise
out of or are connected with the activities within the state. International Shoe Co., supra, at
319. Where a defendant purposefully avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of its laws, Hanson, supra, at 253, it
submits to the judicial power of an otherwise foreign sovereign to the extent that power is
exercised in connection with the defendants activities touching on the State. In other words,
submission through contact with and activity directed at a sovereign may justify specific
jurisdiction in a suit arising out of or related to the defendants contacts with the forum.
Helicopteros, supra, at 414, n. 8 . . . .
The imprecision arising from Asahi, for the most part, results from its statement of the
relation between jurisdiction and the stream of commerce. The stream of commerce, like other
metaphors, has its deficiencies as well as its utility. It refers to the movement of goods from
manufacturers through distributors to consumers, yet beyond that descriptive purpose its
meaning is far from exact. This Court has stated that a defendants placing goods into the stream
of commerce with the expectation that they will be purchased by consumers within the forum
State may indicate purposeful availment. World-Wide Volkswagen Corp. v. Woodson, 444 U.
S. 286, 298 (1980) (finding that expectation lacking). But that statement does not amend the
general rule of personal jurisdiction. It merely observes that a defendant may in an appropriate
case be subject to jurisdiction without entering the forumitself an unexceptional proposition
as where manufacturers or distributors seek to serve a given States market. Id., at 295. The
principal inquiry in cases of this sort is whether the defendants activities manifest an intention to
submit to the power of a sovereign. In other words, the defendant must purposefully avai[l]
itself of the privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws. Hanson, supra, at 253; Insurance Corp., supra, at 704-705
([A]ctions of the defendant may amount to a legal submission to the jurisdiction of the court).
Sometimes a defendant does so by sending its goods rather than its agents. The defendants
transmission of goods permits the exercise of jurisdiction only where the defendant can be said
to have targeted the forum; as a general rule, it is not enough that the defendant might have
predicted that its goods will reach the forum State.
In Asahi, an opinion by Justice Brennan for four Justices outlined a different approach. It
discarded the central concept of sovereign authority in favor of considerations of fairness and
foreseeability. As that concurrence contended, jurisdiction premised on the placement of a
product into the stream of commerce [without more] is consistent with the Due Process Clause,
for [a]s long as a participant in this process is aware that the final product is being marketed in
the forum State, the possibility of a lawsuit there cannot come as a surprise. 480 U. S., at 117
(opinion concurring in part and concurring in judgment). It was the premise of the concurring
opinion that the defendants ability to anticipate suit renders the assertion of jurisdiction fair. In
this way, the opinion made foreseeability the touchstone of jurisdiction.
112
CH. 10
The standard set forth in Justice Brennans concurrence was rejected in an opinion written by
Justice OConnor; but the relevant part of that opinion, too, commanded the assent of only four
Justices, not a majority of the Court. That opinion stated: The substantial connection between
the defendant and the forum State necessary for a finding of minimum contacts must come about
by an action of the defendant purposefully directed toward the forum State. The placement of a
product into the stream of commerce, without more, is not an act of the defendant purposefully
directed toward the forum State. Id., at 112 (emphasis deleted; citations omitted).
Since Asahi was decided, the courts have sought to reconcile the competing opinions. But
Justice Brennans concurrence, advocating a rule based on general notions of fairness and
foreseeability, is inconsistent with the premises of lawful judicial power. This Courts precedents
make clear that it is the defendants actions, not his expectations, that empower a States courts
to subject him to judgment.
The conclusion that jurisdiction is in the first instance a question of authority rather than
fairness explains, for example, why the principal opinion in Burnham conducted no independent
inquiry into the desirability or fairness of the rule that service of process within a State suffices
to establish jurisdiction over an otherwise foreign defendant. 495 U. S., at 621. As that opinion
explained, [t]he view developed early that each State had the power to hale before its courts any
individual who could be found within its borders. Id., at 610. Furthermore, were general
fairness considerations the touchstone of jurisdiction, a lack of purposeful availment might be
excused where carefully crafted judicial procedures could otherwise protect the defendants
interests, or where the plaintiff would suffer substantial hardship if forced to litigate in a foreign
forum. That such considerations have not been deemed controlling is instructive. . . .
Two principles are implicit in the foregoing. First, personal jurisdiction requires a
forum-by-forum, or sovereign-by-sovereign, analysis. The question is whether a defendant has
followed a course of conduct directed at the society or economy existing within the jurisdiction
of a given sovereign, so that the sovereign has the power to subject the defendant to judgment
concerning that conduct. Personal jurisdiction, of course, restricts judicial power not as a
matter of sovereignty, but as a matter of individual liberty, for due process protects the
individuals right to be subject only to lawful power. Insurance Corp., 456 U. S., at 702. But
whether a judicial judgment is lawful depends on whether the sovereign has authority to render
it.
The second principle is a corollary of the first. Because the United States is a distinct
sovereign, a defendant may in principle be subject to the jurisdiction of the courts of the United
States but not of any particular State. . . . For jurisdiction, a litigant may have the requisite
relationship with the United States Government but not with the government of any individual
State. That would be an exceptional case, however. If the defendant is a domestic domiciliary,
the courts of its home State are available and can exercise general jurisdiction. And if another
State were to assert jurisdiction in an inappropriate case, it would upset the federal balance,
which posits that each State has a sovereignty that is not subject to unlawful intrusion by other
States. Furthermore, foreign corporations will often target or concentrate on particular States,
subjecting them to specific jurisdiction in those forums.
B.
113
It must be remembered, however, that although this case and Asahi both involve foreign
manufacturers, the undesirable consequences of Justice Brennans approach are no less
significant for domestic producers. The owner of a small Florida farm might sell crops to a large
nearby distributor, for example, who might then distribute them to grocers across the country. If
foreseeability were the controlling criterion, the farmer could be sued in Alaska or any number of
other States courts without ever leaving town. And the issue of foreseeability may itself be
contested so that significant expenses are incurred just on the preliminary issue of jurisdiction.
Jurisdictional rules should avoid these costs whenever possible.
The conclusion that the authority to subject a defendant to judgment depends on purposeful
availment, consistent with Justice OConnors opinion in Asahi, does not by itself resolve many
difficult questions of jurisdiction that will arise in particular cases. The defendants conduct and
the economic realities of the market the defendant seeks to serve will differ across cases, and
judicial exposition will, in common-law fashion, clarify the contours of that principle.
III
In this case, petitioner directed marketing and sales efforts at the United States. It may be
that, assuming it were otherwise empowered to legislate on the subject, the Congress could
authorize the exercise of jurisdiction in appropriate courts. That circumstance is not presented in
this case, however, and it is neither necessary nor appropriate to address here any constitutional
concerns that might be attendant to that exercise of power. . . . Nor is it necessary to determine
what substantive law might apply were Congress to authorize jurisdiction in a federal court in
New Jersey. . . . A sovereigns legislative authority to regulate conduct may present
considerations different from those presented by its authority to subject a defendant to judgment
in its courts. Here the question concerns the authority of a New Jersey state court to exercise
jurisdiction, so it is petitioners purposeful contacts with New Jersey, not with the United States,
that alone are relevant.
Respondent has not established that J. McIntyre engaged in conduct purposefully directed at
New Jersey. Recall that respondents claim of jurisdiction centers on three facts: The distributor
agreed to sell J. McIntyres machines in the United States; J. McIntyre officials attended trade
shows in several States but not in New Jersey; and up to four machines ended up in New Jersey.
The British manufacturer had no office in New Jersey; it neither paid taxes nor owned property
there; and it neither advertised in, nor sent any employees to, the State. Indeed, after discovery
the trial court found that the defendant does not have a single contact with New Jersey short of
the machine in question ending up in this state. . . . . These facts may reveal an intent to serve
the U. S. market, but they do not show that J. McIntyre purposefully availed itself of the New
Jersey market.
It is notable that the New Jersey Supreme Court appears to agree, for it could not find that J.
McIntyre had a presence or minimum contacts in this Statein any jurisprudential sensethat
would justify a New Jersey court to exercise jurisdiction in this case. 201 N. J., at 61, 987 A. 2d,
at 582. The court nonetheless held that petitioner could be sued in New Jersey based on a
stream-of-commerce theory of jurisdiction.
Ibid.
As discussed, however, the
114
CH. 10
stream-of-commerce metaphor cannot supersede either the mandate of the Due Process Clause or
the limits on judicial authority that Clause ensures. The New Jersey Supreme Court also cited
significant policy reasons to justify its holding, including the States strong interest in
protecting its citizens from defective products. Id., at 75, 987 A. 2d, at 590. That interest is
doubtless strong, but the Constitution commands restraint before discarding liberty in the name
of expediency.
....
Due process protects petitioners right to be subject only to lawful authority. At no time did
petitioner engage in any activities in New Jersey that reveal an intent to invoke or benefit from
the protection of its laws. New Jersey is without power to adjudge the rights and liabilities of J.
McIntyre, and its exercise of jurisdiction would violate due process. The contrary judgment of
the New Jersey Supreme Court is
Reversed.
Justice BREYER, with whom Justice ALITO joins, concurring in the judgment.
The Supreme Court of New Jersey adopted a broad understanding of the scope of personal
jurisdiction based on its view that [t]he increasingly fast-paced globalization of the world
economy has removed national borders as barriers to trade. Nicastro v. McIntyre Machinery
America, Ltd., 201 N. J. 48, 52, 987 A. 2d 575, 577 (2010). I do not doubt that there have been
many recent changes in commerce and communication, many of which are not anticipated by our
precedents. But
this case does not present any of those issues. So I think it unwise to announce a rule of broad
applicability without full consideration of the modern-day consequences.
In my view, the outcome of this case is determined by our precedents. Based on the facts
found by the New Jersey courts, respondent Robert Nicastro failed to meet his burden to
demonstrate that it was constitutionally proper to exercise jurisdiction over petitioner J. McIntyre
Machinery, Ltd. (British Manufacturer), a British firm that manufactures scrap-metal machines
in Great Britain and sells them through an independent distributor in the United States (American
Distributor). On that basis, I agree with the plurality that the contrary judgment of the Supreme
Court of New Jersey should be reversed.
I
In asserting jurisdiction over the British Manufacturer, the Supreme Court of New Jersey
relied most heavily on three primary facts as providing constitutionally sufficient contacts with
New Jersey, thereby making it fundamentally fair to hale the British Manufacturer before its
courts: (1) The American Distributor on one occasion sold and shipped one machine to a New
Jersey customer, namely, Mr. Nicastros employer, Mr. Curcio; (2) the British Manufacturer
permitted, indeed wanted, its independent American Distributor to sell its machines to anyone in
America willing to buy them; and (3) representatives of the British Manufacturer attended trade
shows in such cities as Chicago, Las Vegas, New Orleans, Orlando, San Diego, and San
Francisco. Id., at 54-55, 987 A. 2d, at 578-579. In my view, these facts do not provide contacts
B.
115
between the British firm and the State of New Jersey constitutionally sufficient to support New
Jerseys assertion of jurisdiction in this case.
None of our precedents finds that a single isolated sale, even if accompanied by the kind of
sales effort indicated here, is sufficient. Rather, this Courts previous holdings suggest the
contrary. The Court has held that a single sale to a customer who takes an accident-causing
product to a different State (where the accident takes place) is not a sufficient basis for asserting
jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (1980). And the
Court, in separate opinions, has strongly suggested that a single sale of a product in a State does
not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if
that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a
sale will take place. . . .
Here, the relevant facts found by the New Jersey Supreme Court show no regular . . . flow
or regular course of sales in New Jersey; and there is no something more, such as special
state-related design, advertising, advice, marketing, or anything else. Mr. Nicastro, who here
bears the burden of proving jurisdiction, has shown no specific effort by the British
Manufacturer to sell in New Jersey. He has introduced no list of potential New Jersey customers
who might, for example, have regularly attended trade shows. And he has not otherwise shown
that the British Manufacturer purposefully avail[ed] itself of the privilege of conducting
activities within New Jersey, or that it de-livered its goods in the stream of commerce with the
expectation that they will be purchased by New Jersey users. World-Wide Volkswagen, supra, at
297-298 (internal quotation marks omitted).
....
Accordingly, on the record present here, resolving this case requires no more than adhering
to our precedents.
II
I would not go further. Because the incident at issue in this case does not implicate modern
concerns, and because the factual record leaves many open questions, this is an unsuitable
vehicle for making broad pronouncements that refashion basic jurisdictional rules.
A
The plurality seems to state strict rules that limit jurisdiction where a defendant does not
inten[d] to submit to the power of a sovereign and cannot be said to have targeted the
forum. . . . But what do those standards mean when a company targets the world by selling
products from its Web site? And does it matter if, instead of shipping the products directly, a
company consigns the products through an intermediary (say, Amazon.com) who then receives
and fulfills the orders? And what if the company markets its products through popup
advertisements that it knows will be viewed in a forum? Those issues have serious commercial
consequences but are totally absent in this case.
116
CH. 10
B
But though I do not agree with the pluralitys seemingly strict no-jurisdiction rule, I am not
persuaded by the absolute approach adopted by the New Jersey Supreme Court and urged by
respondent and his amici. Under that view, a producer is subject to jurisdiction for a
products-liability action so long as it knows or reasonably should know that its products are
distributed through a nationwide distribution system that might lead to those products being sold
in any of the fifty states. 201 N. J., at 76-77, 987 A. 2d, at 592 (emphasis added). In the context
of this case, I cannot agree.
For one thing, to adopt this view would abandon the heretofore accepted inquiry of whether,
focusing upon the relationship between the defendant, the forum, and the litigation, it is fair, in
light of the defendants contacts with that forum, to subject the defendant to suit there. Shaffer v.
Heitner, 433 U. S. 186, 204 (1977) (emphasis added). It would ordinarily rest jurisdiction
instead upon no more than the occurrence of a product-based accident in the forum State. But
this Court has rejected the notion that a defendants amenability to suit travel[s] with the
chattel. World-Wide Volkswagen, 444 U. S., at 296.
For another, I cannot reconcile so automatic a rule with the constitutional demand for
minimum contacts and purposefu[l] avail[ment], each of which rest upon a particular notion
of defendant-focused fairness. Id., at 291, 297 (internal quotation marks omitted). A rule like the
New Jersey Supreme Courts would permit every State to assert jurisdiction in a
products-liability suit against any domestic manufacturer who sells its products (made anywhere
in the United States) to a national distributor, no matter how large or small the manufacturer, no
matter how distant the forum, and no matter how few the number of items that end up in the
particular forum at issue. What might appear fair in the case of a large manufacturer which
specifically seeks, or expects, an equal-sized distributor to sell its product in a distant State might
seem unfair in the case of a small manufacturer (say, an Appalachian potter) who sells his
product (cups and saucers) exclusively to a large distributor, who resells a single item (a coffee
mug) to a buyer from a distant State (Hawaii). I know too little about the range of these or
in-between possibilities to abandon in favor of the more absolute rule what has previously been
this Courts less absolute approach.
Further, the fact that the defendant is a foreign, rather than a domestic, manufacturer makes
the basic fairness of an absolute rule yet more uncertain. I am again less certain than is the New
Jersey Supreme Court that the nature of international commerce has changed so significantly as
to require a new approach to personal jurisdiction.
It may be that a larger firm can readily alleviate the risk of burdensome litigation by
procuring insurance, passing the expected costs on to customers, or, if the risks are too great,
severing its connection with the State. World-Wide Volkswagen, supra, at 297. But
manufacturers come in many shapes and sizes. It may be fundamentally unfair to require a small
Egyptian shirt maker, a Brazilian manufacturing cooperative, or a Kenyan coffee farmer, selling
its products through international distributors, to respond to products-liability tort suits in
virtually every State in the United States, even those in respect to which the foreign firm has no
connection at all but the sale of a single (allegedly defective) good. And a rule like the New
B.
117
Jersey Supreme Court suggests would require every product manufacturer, large or small, selling
to American distributors to understand not only the tort law of every State, but also the wide
variance in the way courts within different States apply that law. . . .
C
At a minimum, I would not work such a change to the law in the way either the plurality or
the New Jersey Supreme Court suggests without a better understanding of the relevant
contemporary commercial circumstances. . . .
. . . I would adhere strictly to our precedents and the limited facts found by the New Jersey
Supreme Court. And on those grounds, I do not think we can find jurisdiction in this case.
Accordingly, though I agree with the plurality as to the outcome of this case, I concur only in the
judgment of that opinion and not its reasoning.
Justice GINSBURG, with whom Justice SOTOMAYOR and Justice KAGAN join,
dissenting.
A foreign industrialist seeks to develop a market in the United States for machines it
manufactures. It hopes to derive substantial revenue from sales it makes to United States
purchasers. Where in the United States buyers reside does not matter to this manufacturer. Its
goal is simply to sell as much as it can, wherever it can. It excludes no region or State from the
market it wishes to reach. But, all things considered, it prefers to avoid products liability
litigation in the United States. To that end, it engages a U. S. distributor to ship its machines
stateside. Has it succeeded in escaping personal jurisdiction in a State where one of its products
is sold and causes injury or even death to a local user?
Under this Courts pathmarking precedent in International Shoe Co. v. Washington, 326 U.
S. 310 (1945), and subsequent decisions, one would expect the answer to be unequivocally,
No. But instead, six Justices of this Court, in divergent opinions, tell us that the manufacturer
has avoided the jurisdiction of our state courts, except perhaps in States where its products are
sold in sizeable quantities. Inconceivable as it may have seemed yesterday, the splintered
majority today turn[s] the clock back to the days before modern long-arm statutes when a
manufacturer, to avoid being hauled into court where a user is injured, need only Pilate-like wash
its hands of a product by having independent distributors market it. Weintraub, A Map Out of
the Personal Jurisdiction Labyrinth, 28 U. C. Davis L. Rev. 531, 555 (1995).
....
The machine that injured Nicastro, a McIntyre Model 640 Shear, sold in the United States
for $24,900 in 1995, id., at 43a, and features a massive cutting capacity, id., at 44a. According
to McIntyre UKs product brochure, the machine is use[d] throughout the [w]orld. Ibid.
McIntyre UK represented in the brochure that, by incorporat[ing] off-the-shelf hydraulic parts
from suppliers with international sales outlets, the 640 Shears design guarantees serviceability
wherever [its customers] may be based. Ibid. The instruction manual advises owner[s] and
operators of a 640 Shear [to] make themselves aware of [applicable health and safety
118
CH. 10
regulations], including the American National Standards Institute Regulations (USA) for the
use of Scrap Metal Processing Equipment. Id., at 46a.
Nicastro operated the 640 Shear in the course of his employment at Curcio Scrap Metal
(CSM) in Saddle Brook, New Jersey. Id., at 7a, 43a. . . . New Jersey has long been a hotbed of
scrap-metal businesses . See Drake, The Scrap-Heap Rollup Hits New Jersey, Business
News New Jersey, June 1, 1998, p. 1. In 2008, New Jersey recycling facilities processed
2,013,730 tons of scrap iron, steel, aluminum, and other metalsmore than any other State
outpacing Kentucky, its nearest competitor, by nearly 30 percent. Von Haaren, Themelis, &
Goldstein, The State of Garbage in America, BioCycle, Oct. 2010, p. 19.
CSMs owner, Frank Curcio, first heard of [McIntyre UKs] machine while attending an
Institute of Scrap Metal Industries [(ISRI)] convention in Las Vegas in 1994 or 1995, where
[McIntyre UK] was an exhibitor. . . . ISRI presents the worlds largest scrap recycling
industry trade show each year. . . . The event attracts owners [and] managers of scrap
processing companies and others interested in seeingand purchasingnew equipment.. . .
According to ISRI, more than 3,000 potential buyers of scrap processing and recycling
equipment attend its annual conventions, primarily because th[e] exposition provides them with
the most comprehensive industry-related shopping experience concentrated in a single,
convenient location. . . . .
McIntyre UK representatives attended every ISRI convention from 1990 through 2005. . . .
These annual expositions were held in diverse venues across the United States; in addition to Las
Vegas, conventions were held 1990-2005 in New Orleans, Orlando, San Antonio, and San
Francisco. . . . McIntyre UKs president, Michael Pownall, regularly attended ISRI
conventions. . . . He attended ISRIs Las Vegas convention the year CSMs owner first learned
of, and saw, the 640 Shear. . . . McIntyre UK exhibited its products at ISRI trade shows, the
company acknowledged, hoping to reach anyone interested in the machine from anywhere in
the United States.. . .
Although McIntyre UKs U. S. sales figures are not in the record, it appears that for several
years in the 1990s, earnings from sales of McIntyre UK products in the United States ha[d]
been good in comparison to the rest of the world. . . . In response to interrogatories, McIntyre
UK stated that its commissioning engineer had installed the companys equipment in several
StatesIllinois, Iowa, Kentucky, Virginia, and Washington. . . .
From at least 1995 until 2001, McIntyre UK retained an Ohio-based company, McIntyre
Machinery America, Ltd. (McIntyre America), as its exclusive distributor for the entire United
States. . . . Though similarly named, the two companies were separate and independent entities
with no commonality of ownership or management.. . . . In invoices and other written
communications, McIntyre America described itself as McIntyre UKs national distributor,
Americas Link to Quality Metal Processing Equipment from England. . . .
In a November 23, 1999 letter to McIntyre America, McIntyre UKs president spoke plainly
about the manufacturers objective in authorizing the exclusive distributorship: All we wish to
do is sell our products in the [United] Statesand get paid! . . . Notably, McIntyre America
was concerned about U. S. litigation involving McIntyre UK products, in which the distributor
had been named as a defendant. McIntyre UK counseled McIntyre America to respond
B.
119
personally to the litigation, but reassured its distributor that the product was built and designed
by McIntyre Machinery in the UK and the buck stops hereif theres something wrong with the
machine. . . . Answering jurisdictional interrogatories, McIntyre UK stated that it had been
named as a defendant in lawsuits in Illinois, Kentucky, Massachusetts, and West Virginia. . . .
And in correspondence with McIntyre America, McIntyre UK noted that the manufacturer had
products liability insurance coverage. . . .
Over the years, McIntyre America distributed several McIntyre UK products to U. S.
customers, including, in addition to the 640 Shear, McIntyre UKs Niagara and Tardis
systems, wire strippers, and can machines. . . . In promoting McIntyre UKs products at
conventions and demonstration sites and in trade journal advertisements, McIntyre America
looked to McIntyre UK for direction and guidance. . . . To achieve McIntyre UKs objective, i.e.,
to sell [its] machines to customers throughout the United States, . . . the two companies [were
acting] closely in concert with each other, . . . McIntyre UK never instructed its distributor to
avoid certain States or regions of the country; rather, as just noted, the manufacturer engaged
McIntyre America to attract customers from anywhere in the United States.. . .
In sum, McIntyre UKs regular attendance and exhibitions at ISRI conventions was surely a
purposeful step to reach customers for its products anywhere in the United States. At least as
purposeful was McIntyre UKs engagement of McIntyre America as the conduit for sales of
McIntyre UKs machines to buyers throughout the United States. Given McIntyre UKs
endeavors to reach and profit from the United States market as a whole, Nicastros suit, I would
hold, has been brought in a forum entirely appropriate for the adjudication of his claim. He
alleges that McIntyre UKs shear machine was defectively designed or manufactured and, as a
result, caused injury to him at his workplace. The machine arrived in Nicastros New Jersey
workplace not randomly or fortuitously, but as a result of the U. S. connections and distribution
system that McIntyre UK deliberately arranged. 3 On what sensible view of the allocation of
adjudicatory authority could the place of Nicastros injury within the United States be deemed
off limits for his products liability claim against a foreign manufacturer who targeted the United
States (including all the States that constitute the Nation) as the territory it sought to develop?
McIntyre UK resisted Nicastros efforts to determine whether other McIntyre machines had been sold to
New Jersey customers.McIntyre did allow that McIntyre America may have resold products it purchased from
[McIntyre UK] to a buyer in New Jersey,but said it kept no record of the ultimate destination of machines it
shipped to its distributor.A private investigator engaged by Nicastro found at least one McIntyre UK machine, of
unspecified type, in use in New Jersey.But McIntyre UK objected that the investigators report was unsworn and
based upon hearsay.Moreover, McIntyre UK maintained, no evidence showed that the machine the investigator
found in New Jersey had been sold into [that State].
120
CH. 10
II
A few points on which there should be no genuine debate bear statement at the outset. First,
all agree, McIntyre UK surely is not subject to general (all-purpose) jurisdiction in New Jersey
courts, for that foreign-country corporation is hardly at home in New Jersey. . . .
Second, no issue of the fair and reasonable allocation of adjudicatory authority among States
of the United States is present in this case. New Jerseys exercise of personal jurisdiction over a
foreign manufacturer whose dangerous product caused a workplace injury in New Jersey does
not tread on the domain, or diminish the sovereignty, of any sister State. . . .
Third, the constitutional limits on a state courts adjudicatory authority derive from
considerations of due process, not state sovereignty. As the Court clarified in Insurance Corp. of
Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694 (1982):
The restriction on state sovereign power described in World-Wide Volkswagen Corp.
must be seen as ultimately a function of the individual liberty interest preserved by the
Due Process Clause. That Clause is the only source of the personal jurisdiction
requirement and the Clause itself makes no mention of federalism concerns. Furthermore,
if the federalism concept operated as an independent restriction on the sovereign power
of the court, it would not be possible to waive the personal jurisdiction requirement:
Individual actions cannot change the powers of sovereignty, although the individual can
subject himself to powers from which he may otherwise be protected. Id., at 703, n. 10.
See also Shaffer v. Heitner, 433 U. S. 186, 204, and n. 20 (1977) (recognizing that the mutually
exclusive sovereignty of the States [is not] the central concern of the inquiry into personal
jurisdiction). But see . . . (plurality opinion) (asserting that sovereign authority, not fairness,
is the central concept in determining personal jurisdiction).
Finally, in International Shoe itself, and decisions thereafter, the Court has made plain that
legal fictions, notably presence and implied consent, should be discarded, for they conceal
the actual bases on which jurisdiction rests. . . .
Whatever the state of academic debate over the role of consent in modern jurisdictional
doctrines, the pluralitys notion that consent is the animating concept draws no support from
controlling decisions of this Court. Quite the contrary, the Court has explained, a forum can
exercise jurisdiction when its contacts with the controversy are sufficient; invocation of a
fictitious consent, the Court has repeatedly said, is unnecessary and unhelpful. See, e.g., Burger
King Corp. v. Rudzewicz, 471 U. S. 462, 472 (1985) (Due Process Clause permits forumto
assert specific jurisdiction over an out-of-state defendant who has not consented to suit there);
McGee v. International Life Ins. Co., 355 U. S. 220, 222 (1957) ([T]his Court [has] abandoned
consent, doing business, and presence as the standard for measuring the extent of state
judicial power over [out-of-state] corporations.). 5
5
But see . . . (plurality opinion) (maintaining that a forum may be fair and reasonable, based on its links to
the episode in suit, yet off limits because the defendant has not submitted to the States authority). The pluralitys
B.
121
III
This case is illustrative of marketing arrangements for sales in the United States common in
todays commercial world. A foreign-country manufacturer engages a U. S. company to
promote and distribute the manufacturers products, not in any particular State, but anywhere and
everywhere in the United States the distributor can attract purchasers. The product proves
defective and injures a user in the State where the user lives or works. Often, as here, the
manufacturer will have liability insurance covering personal injuries caused by its products. . . .\
When industrial accidents happen, a long-arm statute in the State where the injury occurs
generally permits assertion of jurisdiction, upon giving proper notice, over the foreign
manufacturer. For example, the States statute might provide, as does New Yorks long-arm
statute, for the exercise [of] personal jurisdiction over any non-domiciliary . . . who . . .
commits a tortious act without the state causing injury to person or property within the state, . . .
if he . . . expects or should reasonably expect the act to have consequences in the state and
derives substantial revenue from interstate or international commerce. N. Y. Civ. Prac. Law
Ann. '302(a)(3)(ii) (West 2008). 7
Or, the State might simply provide, as New Jersey does, for the exercise of jurisdiction
consistent with due process of law. N. J. Ct. Rule 4:4-4(b)(1) (2011).
The modern approach to jurisdiction over corporations and other legal entities, ushered in by
International Shoe, gave prime place to reason and fairness. Is it not fair and reasonable, given
the mode of trading of which this case is an example, to require the international seller to defend
at the place its products cause injury? Do not litigational convenience and choice-of-law
considerations point in that direction? On what measure of reason and fairness can it be
considered undue to require McIntyre UK to defend in New Jersey as an incident of its efforts to
develop a market for its industrial machines anywhere and everywhere in the United States?12
Is not the burden on McIntyre UK to defend in New Jersey fair, i.e., a reasonable cost of
transacting business internationally, in comparison to the burden on Nicastro to go to
Nottingham, England to gain recompense for an injury he sustained using McIntyres product at
his workplace in Saddle Brook, New Jersey?
notion that jurisdiction over foreign corporations depends upon the defendants submission, . . . seems scarcely
different from the long-discredited fiction of implied consent. It bears emphasis that a majority of this Courts
members do not share the pluralitys view.
7
This provision was modeled in part on the Uniform Interstate and International Procedure Act. See N. Y.
Legislative Doc. 90, Judicial Conference of the State of New York, 11th Annual Report 132-147 (1966).
Connecticuts long-arm statute also uses the derives substantial revenue from interstate or international commerce
formulation. See Conn. Gen. Stat. '52-59b(a) (2011).
12
The plurality suggests that the Due Process Clause might permit a federal district court in New Jersey,
sitting in diversity and applying New Jersey law, to adjudicate McIntyre UKs liability to Nicastro. . . . In other
words, McIntyre UK might be compelled to bear the burden of traveling to New Jersey and defending itself there
under New Jerseys products liability law, but would be entitled to federal adjudication of Nicastros state-law
claim. I see no basis in the Due Process Clause for such a curious limitation.
122
CH. 10
McIntyre UK dealt with the United States as a single market. Like most foreign
manufacturers, it was concerned not with the prospect of suit in State X as opposed to State Y,
but rather with its subjection to suit anywhere in the United States. . . . If McIntyre UK is
answerable in the United States at all, is it not perfectly appropriate to permit the exercise of
that jurisdiction . . . at the place of injury? . . .
In sum, McIntyre UK, by engaging McIntyre America to promote and sell its machines in the
United States, purposefully availed itself of the United States market nationwide, not a market
in a single State or a discrete collection of States. McIntyre UK thereby availed itself of the
market of all States in which its products were sold by its exclusive distributor. Th[e]
purposeful availment requirement, this Court has explained, simply ensures that a defendant
will not be hauled into a jurisdiction solely as a result of random, fortuitous, or attenuated
contacts. Burger King, 471 U. S., at 475. Adjudicatory authority is appropriately exercised
where actions by the defendant himself give rise to the affiliation with the forum. Ibid. How
could McIntyre UK not have intended, by its actions targeting a national market, to sell products
in the fourth largest destination for imports among all States of the United States and the largest
scrap metal market? . . .
Courts, both state and federal, confronting facts similar to those here, have rightly rejected
the conclusion that a manufacturer selling its products across the USA may evade jurisdiction in
any and all States, including the State where its defective product is distributed and causes
injury. They have held, instead, that it would undermine principles of fundamental fairness to
insulate the foreign manufacturer from accountability in court at the place within the United
States where the manufacturers products caused injury. See, e.g., Tobin v. Astra Pharmaceutical
Prods., Inc., 993 F. 2d 528, 544 (CA6 1993); A. Uberti & C. v. Leonardo, 181 Ariz. 565, 573,
892 P. 2d 1354, 1362 (1995).
....
V
The commentators who gave names to what we now call general jurisdiction and specific
jurisdiction anticipated that when the latter achieves its full growth, considerations of
litigational convenience and the respective situations of the parties would determine when it is
appropriate to subject a defendant to trial in the plaintiffs community. See von Mehren &
Trautman 1166-1179. Litigational considerations include the convenience of witnesses and the
ease of ascertaining the governing law. Id., at 1168-1169. As to the parties, courts would
differently appraise two situations: (1) cases involving a substantially local plaintiff, like
Nicastro, injured by the activity of a defendant engaged in interstate or international trade; and
(2) cases in which the defendant is a natural or legal person whose economic activities and legal
involvements are largely home-based, i.e., entities without designs to gain substantial revenue
from sales in distant markets. See id., at 1167-1169.18 [C]ourts presented with von Mehren and
Trautmans first scenarioa local plaintiff injured by the activity of a manufacturer seeking to
18
Assigning weight to the local or international stage on which the parties operate would, to a considerable
extent, answer the concerns expressed by Justice Breyer. . . .
B.
123
exploit a multistate or global markethave repeatedly confirmed that jurisdiction is

appropriately exercised by courts of the place where the product was sold and caused injury. . . .
For the reasons stated, I would hold McIntyre UK answerable in New Jersey for the harm
Nicastro suffered at his workplace in that State using McIntyre UKs shearing machine. While I
dissent from the Courts judgment, I take heart that the plurality opinion does not speak for the
Court, for that opinion would take a giant step away from the notions of fair play and
substantial justice underlying International Shoe. 326 U. S., at 316 (internal quotation marks
omitted).
[An Appendix of cases by Justice Ginsburg in which the courts have upheld exercises of
personal jurisdiction over an alien or out-of-state corporation that used a distributor to target a
national market is omitted.]
NOTES AND QUESTIONS
1. Consider the cases of Pennoyer v. Neff and International Shoe v. Washington after
McIntyre. Does Justice Kennedys analysis comport better with Pennoyer or with International
Shoe? Why do you suppose it is so difficult for the Court to abandon the notion that the Due
Process Clauses of the Constitution are designed to embody sovereignty policies? The core
notion of the due process clauses has always been that a defendant is entitled to a reasonable
opportunity to be heard before a court before life, liberty, or property can be taken from the
individual. What does sovereignty have to do with that notion? See generally Stewart E. Sterk,
Personal Jurisdiction and Choice of Law, 98 IOWA L. REV. 1163 (2013).
2. Given that, once again, McIntyre represents a case in which the Supreme Court was
unable to reach a majority on the correct standard, how would you describe the analysis that is
appropriate in specific jurisdiction cases? Doesnt Justice Breyers opinion have a particularly
clouding effect?
3. Isnt Justice Ginsburg correct that the plurality and concurring opinions in McIntyre will
push manufacturers of finished products toward distributing through intermediaries?
4. Recall that the Burger King case, reprinted at page 816 of the casebook, had indicated that
the reasonableness test could be used in specific jurisdiction cases to enhance the validity of an
assertion jurisdiction and not simply to defeat jurisdiction. The cases cited in support of this
suggestion seemed to indicate that the Astates interest@ factor in the reasonableness test might be
the most important factor in the ability to validate an assertion of specific jurisdiction. Does the
failure of the Court, or any of its members, even to mention this possibility in McIntyre indicate
that this part of Burger King is now defunct?
5. See Peter R. Bryce, Note, Whither Fairness? In Search of a Jurisdictional Test After J.
McIntyre Machinery v. Nicastro, 80 FORD. L. REV. 2975 (2012); Veronica Hernandez, Note, J.
McIntyre Machinery, Ltd. V. Nicastro, 131 S. Ct. 2780 (2011): Personal Jurisdiction and the
Stream of Commerce Doctrine, 44 U. TOLEDO L. REV. 431 (2013); Jessica Jeffrey, Note, The
Stream of Commerce Flows On. (J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct 2780, 2011),
40 SUFFOLK U. L. REV. 137 (2013); ); see generally Symposium, Personal Jurisdiction for the
124
CH. 10
Twenty-First Century: The Implications of McIntyre and Goodyear Dunlop Tires, 63 S.C. L.
REV. 463 (2012)..
(3)
Convergence?

Cf. Ex parte Bentley, 50 So.3d 1063 (Ala. 2010) (Regardless of whether assertion of
jurisdiction is general or specific, the connection between a defendant and the forum state must
arise out of an action of the defendant that was purposefully directed toward the forum state.).
See Todd David Peterson, The Timing of Minimum Contacts, 79 GEO. WASH. L. REV. 101
(2010) (examining the timing of minimum contacts in both general and specific jurisdiction
cases).
[Substitute the following citation for the citation to McDougal, Felix & Whitten at the
beginning of Note 4 on page 842.]
2011).
5. Will appointment by a corporation of an agent to receive service of process still result in
jurisdiction by consent (as discussed at pages 776 777 of the casebook) after the development
of the doctrines of general and specific jurisdiction? See King v. American Family Mutual
Insurance Co., 632 F.3d 570 (9th Cir. 2011) (appointment of agent pursuant to state law does not
constitute generalized consent to be sued and is not sufficient to confer either general or specific
jurisdiction).
6. Does the Goodyear decision reprinted in Section B.2.b(1) of this supplement, above, cast
any doubt on the soundness of the courts decision in the Metropolitan Life case? For example,
remember that in the Burger King case, reprinted at page 816 of the casebook, the Supreme
Court indicated that the reasonableness test could be used in specific jurisdiction cases to
enhance the validity of an assertion of jurisdiction as well as to defeat it. Given that the Court in
Goodyear found the assertion of general jurisdiction invalid, but did not make any reference to
the reasonableness test, does that mean the test should not be used in general jurisdiction cases,
or does it just mean it should not be used to enhance the case for jurisdiction in those cases?
Does footnote 5 in Justice Ginsburgs opinion for the Court further indicate that the entire
reasonableness test is limited to specific jurisdiction cases?
B.
125
c. Amenability to Process in Federal Court

citations toward the end of the carryover paragraph on page 843 and toward the end of the first
full paragraph on page 843.]
[Insert at the end of the carryover paragraph on page 844.]
But cf. Unspam Technologies, Inc. v. Chernuk, ___ F.3d ___, 2013 WL 1849080 (4th Cir.
2013) (court first holds minimum contacts test for state-court jurisdiction in Virginia not satisfied
and then rejects jurisdiction under Fed. R. Civ. P. 4(K)(2) on grounds constitution would not be
satisfied by assertion of jurisdiction, seeming to equate the test under the Due Process Clause of
the Fourteenth Amendment with that under the Due Process Clause of the Fifth Amendment).
FELIX & WHITTEN, supra, ' 20, at 58 59; TEPLY & WHITTEN, supra.
citations toward the end of the Note on page 845.]
[Insert the following after the Note on page 845.]
QUESTIONS
If Justice Kennedys opinion in the McIntyre case gains a majority in the future, what are the
implications for the contours of federal amenability to process discussed in this subsection?
Does his opinion undermine the cases such as the Republic of Panama case, discussed on page
843 of the casebook, that seek to impose reasonableness standards on the assertion of personal
jurisdiction by federal courts under federal long-arm provisions?
126
CH. 10
C. GROUNDS FOR DECLINING JURISDICTION

1. Forum-Selection Clauses
See also Provence v. National Carriers, Inc., 360 S.W.3d 725 (Ark. 2010) (only fraud in the
inducement of the forum selection clause itself will invalidate it, as opposed to generalized
allegations of fraud in the inducement of the contract itself).
See also Huffington v. T.C. Group, L.L.C., 637 F.3d 18 (1st Cir. 2011) (no conflict existed
between federal common law standard and state law on enforceability of forum selection clause;
therefore, no Erie question in case.); Rucker v. Oasis Legal Finance, L.L.C., 632 F.3d 1231 (11th
Cir. 2011) (no conflict existed between federal common law on validity of forum selection
clause derived from Bremen and state law.); Albemarle Corp. v. Astrazeneca UK Ltd., 628 F.3d
643 (4th Cir. 2010) (choice-of-forum clause would normally be read as permissive under federal
common law, but choice-of-law clause directs the application of English law, under which the
forum selection clause is read as mandatory and exclusive; same result would apply if South
Carolina law were to be applied under the Klaxon doctrine.); Anderson v. Aon Corp., 614 F.3d
361 (7th Cir. 2010) (California comparative impairment version of governmental interest
analysis applied after transfer from California to Illinois under 28 U.S.C. ' 1404(a), with the
result that California substantive law is applied after transfer.); Kelly Amanda Blair, A Judicial
Solution to the Forum-Selection Clause Enforcement Circuit Split: Giving Erie a Second
Chance, 46 GA. L. REV. 799 (2012); cf. Baliey v. ERG Enterprises, LP, 705 F.3d 1311 (11th Cir.
2013) (fraud claims did not fall within scope of forum selection clause); In re Atlantic Marine
Construction Co., 701 F.3d 736 (5th Cir. 2012) (when a diversity action is filed in federal court,
the proper method of enforcing a forum selection clause is a motion to transfer under 1404(a)
cert. granted, 133 S.Ct. 1748 (U.S. April, 2013)).
4A. Note that 1404(a), discussed in Note 4 of the casebook, formerly provided that a
transfer could only be to another district in which the action might have been brought. This
was interpreted by the Supreme Court to mean that an action could only be transferred to another
district in which original venue and personal jurisdiction would be proper. The parties could not
consent to transfer to another venue. This was changed in the Federal Courts Jurisdiction and
Venue Clarification Act of 2011. Now transfer can be to another district or division where the
action might have been brought, or to any district or division to which all parties have consented.
See Pub. L. No. 112-63, 204, 125 Stat. 758, 764 (2011) (codified as 28 U.S.C. 1404(a)).
C.
GROUNDS FOR DECLINING JURISDICTION
127
Note, however, that the transfer can only be made if all parties consent and the district court
finds the transfer in the convenience of the parties and witnesses and the interests of justice. See
LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE at 424 (5th ed. 2013).
See also Rafael Rodriguez Barril, Inc. v. Conbraco Industries, Inc., 619 F.3d 90 (1st Cir.
2010) (choice-of-forum clause selecting North Carolina enforced; argument that clause was an
indirect way of evading the application of Puerto Rican law rejected); cf. Cagle v. Mathers
Family Trust, 295 P.3d 460 (2013) (forum selection clause in contract calling for Texas forum
enforced; clause not voided by Colorado public policy as embodied in Colorado Securities Act);
Melia v. Zanhire, Inc., 967 N.E.2d 580 (2012) (forum selection clause selecting New York forum
enforced; court observes that enforcement of clause will not deprive employee of protections of
Massachusetts Wage Act, because New York court under New Yorks conflict of laws approach
would certainly apply the Massachusetts Act).
page 854.]
See also Jennifer Dempsey, Forum Selection Clauses in Attorney-Client Agreements: The
Exploitation of Bargaining Power, 114 W. VA. L. REV. 1195 (2012); Robert Force, The Position
in the United States on Foreign Forum Selection and Arbitration Clauses, Forum Non
Conveniens, and Antisuit Injunctions, 35 TUL. MAR. L.J. 401 (2011); Walter W. Heiser, The
Hague Convention on Choice of Court Agreements: The Impact on Forum Non Conveniens,
Transfer of Venue, Removal, and Recognition of Judgments in United States Courts, 31 U. PA. J.
INTL L. 1013 (2010); Nathan M. Crystal & Francesca Giannoni-Crystal, Enforceability of
Forum Selection Clauses: A Gallant Knight Still Seeking El Dorado, 8 S.C. J. INTL & BUS. 203
(2012).
2. Forum Non Conveniens
[Substitute the following citations for the citations in Note 4(a) on page 860.]
ed. 2011); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE at 419 (5th ed. 2013).
FELIX & WHITTEN, supra, ' 35, at 117 18; TEPLY & WHITTEN, supra, at 419-22.
128
CH. 10

See also Figueiredo Ferraz E Engenharia De Projeto LTDA v. Republic of Peru, 665 F.3d
384 (2d Cir. 2011) (alternate forum is adequate if defendants are amenable to service there and
the forum permits the litigation; when adequacy of the alternative forum is assessed in terms of
the ability to execute a judgment in the foreign court, the question is whether there are some
assets of the defendant there, not whether the precise asset located in the United States can be
executed on); Anyango v. Rolls-Royce Corp., 971 N.E.2d 654 (Ind. 2012) (Indiana Supreme
Court affirms dismissal on forum non conveniens grounds despite fact that a British Columbia
court might award plaintiffs less by applying British Columbia law); Erin Foley Smith, Right to
Remedies and the Inconvenience of Forum Non Conveniens: Opening U.S. Courts to Victims of
Corporate Human Rights Abuses, 44 COLUM. J.L. & SOC. PROBS. 145 (2010).
See also Gutierrez v. Advanced Medical Optics, Inc., 640 F.3d 1025 (9th Cir. 2011) (after
defendant agreed to submit to jurisdiction of a Mexican court, district court dismissed on
grounds of forum non conveniens; however, while case was on appeal, Mexican court refused
jurisdiction over the action; therefore, court of appeals reversed and remanded to the district
court for reconsideration of the dismissal in light of the Mexican courts action); Lindsay Cronin,
Putting the AConvenience@ Back in Forum Non Conveniens: Gutierrez v. Advance Medical
Optics, Inc., 61 AM U. L. REV. 205 (2011); Jena A. Sold, Inappropriate Forum or Inappropriate
Law? A Choice-of-Law Solution to the Jurisdictional Standoff Between the United States and
Latin America, 60 EMORY L.J. 1437 (2011); Jeff Todd, Phantom Torts and Forum Non
Conveniens Blocking Statutes: Irony and Metonym in Nicaraguan Special Law, 43 U. MIAMI
INTER-AM. L. REV. 291 (2012).
See also DiFederico v. Marriott International, Inc., ___ F.3d ___, 2013 WL 1811872 (4th
Cir. 2013)(district court improperly failed to give proper deference to American plaintiffs
choice of forum; also, difficulties in applying Pakistani law in U.S. court not so great as to
require dismissal); Tazoe v. Airbus S.A.S., 631 F.3d 1327 (11th Cir. 2011) (district court
correctly dismissed action of U.S. Citizens, even though their choice of forum was entitled to
somewhat more deference, because of the burdens on defendants of compelling witnesses,
obtaining documents, and impleading potentially liable third-party defendants.); Quixtar Inc. v.
Signature Mgmt Team. LLC, 315 S.W.3d 28 (Tex. 2010) (burden of proof on party seeking
dismissal is heavy unless plaintiffs are nonresidents, in which case burden applies with less
force.); cf. Eurofins Pharma US Holdings v. Bioalliane Pharma SA, 623 F.3d 147 (3d Cir. 2010)
(dismissal of one defendant for lack of personal jurisdiction weighed in favor of dismissal of
action against other defendant on grounds of forum non conveniens in order to avoid substantial
inconvenience to parties of conducting two actions.); In re Ensco Offshore Intl Co., 311 S.W.3d
C.
GROUNDS FOR DECLINING JURISDICTION
129
921 (Tex. 2010) (action by decedents wife against a Texas corporate owner of oil rig based on a
wrongful death action in which decedent, an Australian citizen, was killed in Singapore while
working for an Australian company; case ordered dismissed on grounds of forum non
conveniens, court holding inter alia that where multiple alternative forums existed, defendant did
not have to focus on one to the exclusion of another under Texas forum non conveniens statute.).
See also Virginia A. Fitt, The Tragedy of Comity: Questioning the American Treatment of
Inadequate Foreign Courts, 50VA. J. INTL L. 102 (2010); Robert Force, The Position in the
United States on Foreign Selection and Arbitration Clauses, Forum Non Conveniens, and
Antisuit Injunctions, 35 TUL. MAR. L.J. 401 (2011); Markus Petsche, Whats Wrong With Forum
Shopping? An Attempt to Identify and Assess the Real Issues of a Controversial Practice, 45
INTL LAW. 1005 (2011); Joel H. Samuels, When is an Alternative Forum Available? Rethinking
the Forum Non Conveniens Analysis, 85 IND. L.J. 1059 (2010); Sidney K. Smith, Forum Non
Conveniens and Foreign Policy: Time for Congressional Intervention?, 90 TEX. L. REV. 743
(2012); Christopher AA. Whytock, Forum Non Conveniens and the Enforcement of Foreign
Judgments, 111 COLUM. L. REV. 1444 (2011); Christopher A. Whytock, The Evolving Forum
Shopping System, 96 CORNELL L. REV. 481 (2011).
3. Penal and Governmental Claims
[Substitute the following citation for the citation in Note 5 on page 869.]
4. Dissimilarity and Public Policy
[The indented quotation in the second full paragraph on page 870 is now found in the
following source.]
2011).
5. Local Actions
But cf. Bailey v. Shell Western E & P, Inc., 609 F.3d 710 (5th Cir. 2010) (Court applies
Texas local action rule to determine that action is not local action; refuses to resolve whether rule
is jurisdictional or not.); Prawoto v. Primelending, 720 F. Supp. 1149 (C.D. Cal. 2010)
(Confused analysis in which the court applies California law to determine whether an action to
130
CH. 10
revise a mortgage on Texas land was a local action; courts opinion was based on its
interpretation of Ninth Circuit authority; action held to be local and venue proper only in Texas.).
[Substitute the following citations for the McDougal, Felix & Whitten & Teply & Whitten
6. The local action rule was repealed in federal courts in the Federal Courts Jurisdiction and
Venue Clarification Act of 2011, Pub. L. 112-63, 202(1), 125 Stat. 758, 763 (2011) (codified in
28 U.S.C. 1391(a)(2)); id. 203, 125 Stat. at 764 (2011) (repealing 28 U.S.C. 1392, which
contained a reference to the local action rule). Note that this means that if a state retains the local
action rule in its courts and would dismiss the action under the rule because the action involves
land located in another state, the plaintiff who wishes to sue in the state and can invoke the
diversity jurisdiction will be able to maintain the action in federal court, subject, of course, to the
power of the court to transfer the action for the convenience of the parties and witnesses and in
the interests of justice under 28 U.S.C. 1404(a). Is this a desirable result? Note also that this
repeal does not affect actions in violation of the rule examined in Chapter 9B.2.b.(3) of the
casebook that a court does not have subject-matter jurisdiction to directly affect the title to land
located in another state. Some such actions might be local actions, but others are not. Assuming
that the federal courts are bound by this no direct affect on title rule (should they be?) in the
same way that state courts are, they will be unable to render judgments directly affecting the title
that will be enforceable where the land is located.
6. Comity?
See Donald Earl Childress, Comity as Conflict: Resituating International Comity as Conflict
of Laws, 44 U.C. DAVIS L. REV. 11 (2010).
D. INJUNCTIONS AGAINST EXTRASTATE ACTIONS
Robert L. Felix & Ralph U. Whitten, American Conflicts Law ' 38, at 126 - 27 (6th ed.
2011).
D.
INJUNCTIONS AGAINST EXTRASTATE ACTIONS
131
[Substitute the following citation for the citation to Teply & Whitten toward the end of Note
3 on page 887.]
Cf. Chapman v. Deutsche Bank Natl Trust Co., 657 F.3d 1039 (9th Cir, 2011) (questions
certified to states highest court to determine whether actions were classified as in rem under
state law, in which case, federal action would have to be dismissed because state court first
acquired jurisdiction over the property); Bank of Oklahoma , N.A. v. Tharaldson Motels II, Inc.,
743 F. Supp.2d 1080 (D.N.D. 2010) (Anti-Injunction Act imposes an absolute bar against the
issuance of a federal injunction against a pending, parallel, in personam proceeding in state court
of the same state in which the district court is sitting unless case fits within one of exceptions to
Act; no inquiry whether other state courts in state would enjoin same parallel proceeding if
action were brought there).
See also Robert Force, The Position in the United States on Foreign Forum Selection and
Arbitration Clauses, Forum Non Conveniens, and Antisuit Injunctions, 35 TUL. MAR. L.J. 401
(2011); Anthony C. Piccirillo, Sisyphus Meets Icarus: The Jurisdictional and Comity Limits of
Post-Satisfaction Anti-Foreign-Suit Injunctions, 80 FORD. L. REV. 1407 (2011).
*****

3007 2013S

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

3007 2013S

Uploaded by

Copyright:

Available Formats

AMERICAN CONFLICTS LAW: CASES AND

LexisNexis Law School Publishing

CHOICE OF LAW: SOME GENERAL PROBLEMS

4. Leflars Choice-Influencing Considerations

CLASSIFYING RULES AS SUBSTANTIVE OR PROCEDURAL

B. CLASSIFYING RULES AS SUBSTANTIVE OR

CHOICE OF LAW: SOME GENERAL PROBLEMS

[Insert at the end of Note 4 on page 93.]

CLASSIFYING RULES AS SUBSTANTIVE OR PROCEDURAL

CHOICE OF LAW: SOME GENERAL PROBLEMS

COPING WITH RENVOI

CHOICE OF LAW: SOME GENERAL PROBLEMS

DEALING WITH EXTRATERRITORIAL CONDUCT

[Insert after Note 5 on page 171.]

CHOICE OF LAW: SOME GENERAL PROBLEMS

CHOICE OF LAW: SOME CONSTITUTIONAL PROBLEMS

OTHER CONSTITUTIONAL CLAUSES

3. The Commerce Clause

CHOICE OF LAW: SOME CONSTITUTIONAL PROBLEMS

CHOICE OF LAW: TORTS

LEFLERS CHOICE INFLUENCING CONSIDERATIONS

CHOICE OF LAW: TORTS

SPECIAL PROBLEMS: MASS TORTS

[Insert at the end of Note 5(b) on page 349.]

CHOICE OF LAW: TORTS

CHOICE OF LAW: CONTRACTS

[Insert at the end of Note 4 on page 373.]

SOME MODERN APPROACHES

[Insert at the end of Note 6 on page 413.]

CHOICE OF LAW: CONTRACTS

SOME SPECIAL PROBLEMS

CHOICE OF LAW: CONTRACTS

CHOICE OF LAW: PROPERTY, TRUSTS, AND ESTATES

CHOICE OF LAW: PROPERTY, TRUSTS, AND ESTATES

MARRIAGE AND ITS TERMINATION

1. The Uniform Child Custody Jurisdiction Enforcement

[Insert new Note 2A after the end of paragraph 2 on page 555.]

Adoption of Same-Sex Partners, Necessitate Revision of Marylands Intestacy Law to Provide

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

absence of statute to order a physical examination. In a number such an order is

VERTICAL CHOICE OF LAW

VERTICAL CHOICE OF LAW

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

THE ERIE DOCTRINE

VERTICAL CHOICE OF LAW

Applying Rule 23 Does Not Violate the Enabling Act