Mon. Apr. 14

same-sex marriage and full faith and credit

why aren’t marriages judgments?

Assume two Californians get into a marriage in Louisiana, which has covenant marriage – which does not allow a subsequent divorce

They then return to California

Is a California court prohibited from allowing them to get divorced?

Assume two Louisianans get into a marriage in Louisiana, which has covenant marriage – which does not allow a subsequent divorce

A few years later they move to California

Is a California court prohibited from allowing them to get divorced?

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Records...?

- VA issues a license to carry a concealed weapon to X, a Virginia domiciliary, in VA- X moves to MD- Is MD obligated to allow X to carry a concealed weapon within its borders?

DOMA:No State … shall be required to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State…or right or claim arising from such relationship.

In MA, D (a domiciliary of VA) injures X (a domiciliary of MA, who is in a same-sex marriage with P). P sues D in MA and gets a judgment for loss of consortium.

May a VA ct refuse to recognize the judgment under DOMA?

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Kramer’s argument...

- A same sex-couple domiciled in MA gets married in MA and then moves to VA- VA may not refuse to recognize the marriage on the ground of its strong public policy against same-sex marriages- VA may however refuse to recognize the marriage by giving preference to its interests over MA’s

- Cousins domiciled in MA get married in MA and then move to VA- VA does not allow cousins to marry- VA must refuse to recognize the marriage by giving preference to its interests over MA’s

same-sex divorce

Chambers v. Ormiston(R.I. 2007)

- Chambers dies with land in New York- there a contest between Chambers’s family and Ormiston in NY state court- who gets it?

Mass same-sex couple adopt child in Mass and then move to OK

Can OK refuse to recognize the adoption?

Erie

Tompkins (a PA domiciliary) sues Erie (a NY domiciliary) in NY state court concerning an accident in PA

Can NY use its own standard of care?Can NY use its own procedure?

Outstanding Questions:1) Can a state forum w/o substantive lawmaking power under Allstate use its power over procedure to displace sister state substantive law?2) How can you tell whether the sister state’s law is substantive?

Tompkins sues Erie in federal court in NY concerning an accident in PA

Can the federal court apply a federal standard of care

Can the federal court use federal procedure?

P sues D in federal court in New York under New York law

Can the federal court apply a federal limitations period or must it apply New York’s?

Guaranty Trust v York(US 1945)

It is therefore immaterial whether statutes of limitation are characterized either as "substantive" or "procedural" in State court opinions in any use of those terms unrelated to the specific issue before us. Erie R. Co. v. Tompkins ... expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.

A Mississippi statute requires a corporation doing business within the state to designate an agent for the service of process before bringing suit.

Should this statute be used by a federal court in Mississippi?

A New Jersey statute requires small shareholders bringing derivative actions to post a bond.

Should this statute be used by a federal court in New Jersey for a derivative action under Delaware law?

Byrd v. Blue Ridge Elec. Coop. (US 1958)

“First. It was decided in Erie R. Co. v. Tompkins that the federal courts in diversity cases must respect the definition of state-created rights and obligations by the state courts. We must, therefore, first examine the [state] rule … to determine whether it is bound up with these rights and obligations in such a way that its application in the federal court is required.”

Is a federal court forbidden to use its power to create procedural common law to displace state substantive law in federal court?

Is Congress forbidden to use its power to create procedural law for federal courts to displace state substantive law?

P sues D in federal court in NY under PA law. PA’s statute of limitations is bound up with the PA cause of action. A NY state court would use NY’s statute of limitations anyway.What statute of limitations should the federal court use?

“But cases following Erie have evinced a broader policy to the effect that the federal courts should conform as near as may be -- in the absence of other considerations -- to state rules even of form and mode where the state rules may bear substantially on the question whether the litigation would come out one way in the federal court and another way in the state court if the federalcourt failed to apply a particular local rule.”

“But there are affirmative countervailing considerations at work here.”

Hanna v. Plumer(US 1965)

Suit in fed ct in MA under MA law

Should MA’s service rule be used or can the ct use the FRCP governing service instead?

“[T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.”

Could Congress pass a uniform limitations period for state law actions brought in federal court?

28 U.S.C. § 2072. - Rules of procedure and evidence; power to prescribe (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. . . .’

“Under the cases construing the scope of the Enabling Act, Rule 4(d)(1) clearly passes muster. Prescribing the manner in which a defendant is to be notified that a suit has been instituted against him, it relates to the ‘practice and procedure of the district courts.’ ‘The test must be whether a rule really regulates procedure, - the 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 v. Wilson & Co.”

“Not only are nonsubstantial, or trivial, variations not likely to raise the sort of equal protection problems which troubled the Court in Erie; they are also unlikely to influence the choice of a forum. The 'outcome-determination' test therefore cannot be read without reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.”