Agenda for 12 th Class Choice of Law in Federal Court (continued) – Van Dusen Federal Legislation about Choice of Law – Gottesman article Presentations – Hilary Habib, Same-Sex Marriage – Seth Yandrofski, Quantitative Analysis Extraterritorial Application of Federal Law

Choice of Law in Federal Court Klaxon (1941) – Federal district courts must apply choice of law rules adopted by state courts of state where federal court located – Otherwise federal and state courts sitting next to each other would apply different law – Non-uniformity between federal courts is result of federal system Van Dusen (1964) – When case is transferred under 1404, transferee court should apply choice of law rules that transferor court would have applied applied Transferor court would have applied choice of law rules that state court in same state would have applied (Klaxon)

Questions on Van Dusen I The Court in Van Dusen states that the plaintiff has a right to choose the court. Why? Is that a right that plaintiffs should have? Is the Court’s assumption that the plaintiff has a right to choose the court consistent with the existence of 1404, which gives federal courts the power to transfer cases from one federal court to another? The Court assumes that it should respect a plaintiff’s right to select applicable law by choosing the court. Why? Is that a right that plaintiffs should have? Van Dusen involved a transfer of venue requested by the defendant. What if the plaintiff requested the transfer of venue? Should the transferee court still apply the choice of law rules of the state in which the transferor court was located?

Questions on Klaxon and Van Dusen II If a case is brought in state court in State A, and the state court thinks courts in State B would be much more convenient, then the court in State A can dismiss the case on forum non conveniens grounds. In that situation, the plaintiff must refile the case in state court in State B, and the court in State B will apply its own choice of law rules. What does that suggest about the law that should be applied in federal court when a case is transferred under 1404 because the court where the plaintiff filed was very inconvenient? In footnote 2, the Court states that the transferee court “may still apply its own rules governing the conduct and dispatch of cases in its own court.” How is that consistent with the holding of Van Dusen? What rules might the Court have been referring to?

Questions on Gottesman Do you agree with Gottesman that American choice of law is “wasteful and unfair”? Can you think of reasons other than the ones he mentions why the current system is problematic? Can you think of reasons why the situation is not as problematic as he describes? Do you agree that it would be good to have federal choice of law rules that preempted state laws? Do you agree that it there should be federal choice of law rules only in frequently litigated contexts, but that other disputes should be left to state choice of law rules? Do you agree that Congress rather than the federal courts should generate federal choice of law rules? Do you agree with Gottesman’s proposed choice of law approach? Can you think of a better one? Do you agree with Gottesman that just about any uniform, federal solution would be better than the current situation? Do you agree with Gottesman’s proposed rules for statutes of limitations? What rule would you formulate for product liability? Do you agree that choosing the law of the place of wrong (manufacture) would lead to a “race to the bottom” (p. 15)? Do you agree that McConnell’s solution (law of the place of purchase) “is worse than the evil to which it is addressed” (p. 17).

Lauritzen v Larsen (1953) While in NY, Larsen, a Danish citizen, joined the crew of the Randa, a Danish ship owned by a Danish citizen. Contract, in Danish, stated that governed by Danish law Larsen injured in Havana, Cuba Larsen sued in SDNY under US Law (Jones Act) Jones act provides recovery to “any seaman who shall suffer personal injury in the course of his employment.” Should Jones Act apply? Would result be different if Danish owner were domiciled in US (but still a Danish citizen)?

EEOC v Arabian American (1991) Aramco Service Corp (ASC) was a Delaware Corporation headquartered in TX which does a lot of work in Saudi Arabia. ASC hired Boureslan, a US citizen, in Houston, and transferred him, at his request, to Saudi Arabia ASC discharged Boureslan Boureslan sued in USDC in TX under Title VII claiming discrimination Defendant filed motion for SJ arguing lack of subject matter jurisdiction, because Title VII does not extend to US citizens employed abroad by US corporations Title VII applies to any employer “engaged in an industry affecting commerce.” – “Commerce” is “trade …. among the several states; or between a state and any place outside thereof; or within the District of Columbia, or a possession of the US; or between points in the same State but through a point outside thereof.” – But not “employer with respect to the employment of aliens outside any state.” How should court rule? Would the result be different if ASC were a Saudi corporation headquartered in Saudi Arabia? Should the district court apply Saudi employment law?

Hartford Fire (1993) US and foreign insurance companies allegedly conspired abroad to standardize policies in US insurance market – E.g. count legal costs against policy limits, limit pollution coverage, etc. 19 US states and private plaintiffs sued the insurance companies under Sherman Act. – Sherman Act applies to any contract or conspiracy that “has a direct, substantial, and reasonably forseeable effect” on domestic or import commerce Does US law apply?