Agenda for 7th Class

1. Agenda for 7th Class • Midsemester feedback • Heterosexual Marriage (continued) • Traditional approach to marriage • Miscegenation cases • California approach to marriage • Same-Sex Marriage • Cases • Koppelman

2. Assignment for Next Class • Readings for next class • Procedure • First Restatement (CB 132-33) • O’Leary (CB 138-42) • Grant (CB142-146) • Modern approaches (CB 271-73) • Restatement 2nd (see next slide) • Statutes of Limitations • First Restatement (CB 146) • Duke (CB 146-56) • Ledesma (CB274-77, 280-82) • Questions to think about for next class • See next slides • Optional • Hoffheimer, Chapters 12 and 13 • Spillenger, pp. 30-33

3. Restatement 2nd 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 §§ 187-188.

4. Questions for Next Class • 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 2nd Restatement (see p. 281)

5. Questions for Next Class 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 2nd 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 2nd Restatement to promulgae this rule?

6. Questions for Next Class 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?

7. Marriage: May’s Estate • In re May’s Estate • Should it matter that the parties seem to have gone to Rhode Island solely to get married? • Should it matter that the decedent could have written a will directing his assets to be distributed in a way that would have matched the distribution under the assumption that he had been married? • How would this case have been resolved under the 1st Restatement? • How would this case be resolved under the 2nd Restatement? • How would this case be resolved, if the parties were domiciled in California and the case was brought in California? • How would this case have been resolved if New York applied interest analysis or comparative impairment? • Consider the statutory interpretation in Lanham v Lanham in the paragraph that spans pp. 74-75. If the interpretation there were applied to In re May’s Estate, what would the result have been? What is the best interpretation of a statute declaring a particular kind of marriage void? • Should there be a policy in favor of marriages?

8. Marriage: Lanham • Lanham v Lanham • Should it matter that the parties seem to have gone to Michigan solely to get married? • Should it matter that the decedent could have written a will directing his assets to be distributed in a way that would have matched the distribution under the assumption that he had been married? • How would this case have been resolved the Wisconsin court applied New York choice of law and precedents circa 1953? • How would this case have been resolved under the 1st Restatement? • How would this case be resolved under the 2nd Restatement? • How would this case be resolved, if the parties were domiciled in California and the case was brought in California? • How would this case have been resolved if Wisconsin applied interest analysis or comparative impairment?

9. Marriage: Miscegenation • State v Ross • Were you surprised by the outcome? • How would this case have been resolved under the First Restatement? Restatement 2nd? Interest Analysis? Comparative Impairment? • What is Judge Rodman’s attitude toward mixed race marriages? • How could Judge Rodman respond to Judge Reade’s arguments about polygamy and marriages between nine year olds? • Why does Judge Reade think that voiding the marriage would not disturb the legitimacy of children and property rights? • State v Bell • Why does the court in this case reach a different result than in State v Ross? • Which opinion is more persuasive, State v Bell or State v Ross? • What, if anything, do these cases suggest about recognition of same-sex marriages, when such marriages were contracted in states which allow such marriages, but where recognition is sought in states which do not?

10. Marriage:California • In re estate of Grant V. Levie • The court alludes to an argument based on Hurtado. What do you think that argument was? Is it persuasive? • Should it matter that the decedent could have written a will directing his assets to be distributed in a way that would have matched the distribution under the assumption that he had been married?

11. McDonald • McDonald v McDonald • The California Supreme court in this case recognized an exception to Civil Code 63 “when marriage is regarded as odious by common consent of nations….” • Is this exception based on sound statutory interpretation? • Do you think the case might have come out differently if the woman, upon turning 18, had petitioned the court to annul the marriage so that she could marry a different man? • Suppose, in 1936, the only country to recognize same-sex marriages was Thailand and that a same-sex couple from Thailand moved to California. Do you think California courts would have recognized the marriage? • Does your answer to the previous question depend on whether (a) one of the men was being prosecuted for bigamy for a subsequent marriage to a California woman, or (b) one of the men was seeking inheritance after the other died intestate?

12. California; Same-Sex Marriage • Kaur v Boyles • Did the outcome surprise you? • The last paragraph mentions that public policy might have had a greater role in a suit against the man for cohabitation. Why? • California Family Code 308 • Based on Kaur v. Boyles and McDonald v McDonald, do you think a same-sex marriage contracted in a state which allowed such marriages would have been recognized in California before the 2009 amendments to California Family Code 308? • What difference do the 2009 Amendments make? • Do you think that the 2009 Amendments are constitutional? • 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?

13. 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?