1 Agenda for 7th Class Midsemester Feedback Same-Sex Marriage –Cases –Koppelman Procedure –Burdens of proof –Survival of actions –Statutes of Limitations Next class is April 1 –Next week (3/18). Spring break –Week after (3/25). Class canceled –Will post assignment & by Wednesday evening

2 Midsemester Feedback Liked –Class discussion, slides, structure, short fully-covered readings, questions in advance Suggestions –Fewer old cases / more new cases (x2) –More international materials –Outline of topics / where class going (x2) –Finish material –Timeline for papers April 12. Rough draft. ed to me by 5PM April 15, 22, or 29. Present in class May 15. Final draft. Dean’s Office by 5PM. Also me –Participation grading –More detailed class debates –Too much work. Reading + paper research –Laptops, so don’t have to print notes –Ambiguous nature of material

3 California; Same-Sex Marriage Martinez v County of Monroe and In re Marriage of J.B. and H.B –Why do you think these two cases came out differently? –If the Texas courts won’t grant J.B. a divorce, is there any way that he can get one? Suppose H.B. does not want to get divorced, how would you advise him to retain his marital status?

4 Koppelman Do you agree that the most sensible approach to migratory marriages is to decide them on a case-by-case approach depending on which “incident” of marriage is at issue? Suppose the scenario discussed on p. 12 unfolds in Texas. How do you think a Texas judge would handle the issues? –That is, suppose a lesbian coupled married in Massachusetts and had a child there with a sperm donor. The biological mother and child travel to Texas and get into an accident. Would the other half of the lesbian couple be allowed to visit her in the hospital? If the biological mother died, would the child be declared an orphan and put in foster care? If you were a Texas judge, how would you try to avoid these outcomes? According to Koppelman, southern states in the time of Jim Crow recognized mixed-race marriages for inheritance purposes. He argues that the same should be true for same-sex marriages, even in states which do not recognize them. (See p. 12) –Do you think Texas would recognize same-sex marriages for the purpose of inheritance? –If your answer is “no,” why do you think Koppelman either rejected or did not consider your arguments?

5 Restatement 2 nd on Procedure § 122. Issues Relating to Judicial Administration –A court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local law rules of another state to resolve other issues in the case. § 127. Pleading and Conduct of Proceedings –The local law of the forum governs rules of pleading and the conduct of proceedings in court. § 129. Mode of Trial –The local law of the forum determines whether an issue shall be tried by the court or by a jury. § 133. Burden of Proof –The forum will apply its own local law in determining which party has the burden of persuading the trier of fact on a particular issue unless the primary purpose of the relevant rule of the state of the otherwise applicable law is to affect decision of the issue rather than to regulate the conduct of the trial. In that event, the rule of the state of the otherwise applicable law will be applied. § 140. Integrated Contracts (Parol Evidence Rule) –Whether a contract is integrated in a writing and, if so, the effects of integration are determined by the local law of the state selected by application of the rules of §§

6 Questions on Procedure I O’Leary –Are burdens of proof “procedural” or “substantive”? –Aside from the distinction between procedural and substantive, were there good reasons to apply Illinois’ burden of proof in this case? Grant –Are you convinced that the survival of actions is procedural? –Why do you think Judge Traynor reached the result he did? –What would the result be under comparative impairment? –Why doesn’t Judge Traynor apply comparative impairment? Duke –Whose approach did you find most convincing – majority, concurrence, or dissent? –Is there a better way of resolving conflicts questions relating to statutes of limitations? –How would the case have been resolved under the 2 nd Restatement (see p. 281)

7 Questions on Procedure II Ledesman –If this case were resolved under interest analysis, how would it be analyzed? –Can you construct comparative impairment arguments different in outcome or detail from the one made by the court? Restatement 2 nd on Statutes of Limitations (CB p. 281) –Would you characterize this provision as generally pro-plaintiff, pro- defendant, or neither? –Does the rule suggest that statutes of limitations should be treated like procedure, substance, neither, or both? –What do you think motivated the drafters of the 2 nd Restatement to promulgae this rule?

8 Questions on Procedure III Why in general does it make sense for the forum to apply its own procedures? When does it makes sense to apply foreign (e.g. non-forum) law to issues which look procedural (like burdens of proof or statutes of limitation)? Suppose Kansas has, by statute, capped non-economic damages at $100,000, but Nebraska has not. Also suppose that a Nebraska resident got into an accident in Kansas with a driver employed by a corporation headquartered in Kansas but incorporated in Nebraska. If the plaintiff files suit in Nebraska, should the Nebraska court apply Kansas’s cap on damages –Consider the first Restatement as well as modern approaches. Suppose two people form a contract in Massachusetts to be performed in Massachusetts. When breach arises, the suit is heard in Rhode Island. Under Massachusetts’s version of the Statute of Frauds, the contract is not valid. Under Rhode Island’s version of the Statute of Frauds, the contract is valid. Which state’s law should apply to the validity of the contract?