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IN RE "AGENT ORANGE" PROD. LIAB. LITIG.

February 21, 1984

In re "AGENT ORANGE" Product Liability Litigation.


The opinion of the court was delivered by: WEINSTEIN

PRELIMINARY MEMORANDUM ON CONFLICTS OF LAW

WEINSTEIN, Ch. J.:

 A considerable number of Vietnam war veterans resident in all or almost all states, Puerto Rico and the District of Columbia and a number of foreign countries, and members of their families, claim to have suffered injury as a result of the veterans' exposure to herbicides in Vietnam. Defendants produced those herbicides. Individual claims, originally filed in all parts of the country, were transferred for pretrial purposes to this court. Subject to some powers to opt out, common issues presented by plaintiffs' claims will now be tried together since a class has been certified pursuant to Rule 23. See In re "Agent Orange" Product Liability Litigation, P.T.O. 72, F. Supp. (E.D.N.Y. Dec. 16, 1983).

 Plaintiffs have failed to state a cause of action under federal common law for jurisdictional purposes. In re "Agent Orange" Product Liability Litigation, 635 F.2d 987 (2d Cir. 1980), cert. denied sub nom. Chapman v. Dow, 454 U.S. 1128, 71 L. Ed. 2d 116, 102 S. Ct. 980 (1981). Accordingly, the litigation is grounded upon diversity jurisdiction raising the issue of what substantive law should apply.

 As required by Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941), this court has examined the conflict of law rules of the states in which the transferor courts sit. Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964). For the reasons set forth below, it is concluded that under the special circumstances of this litigation, all the transferor states would lake to the same substantive law for the rule of decision on the critical substantive issues.

 I. Introduction

 Plaintiffs originally sought to base jurisdiction on federal common law relying on federal question jurissdiction. 28 U.S.C. § 1331. This court sustained their contention. In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 737 (E.D.N.Y. 1979). The Second Circuit reversed, concluding, for the purpose of denying federal question jurisdiction, that "there is [no] identifiable federal policy at stake in this litigation that warrants the creation of federal common law rules." 635 F.2d 987, 993, cert. denied sub nom. Chapman v. Dow, 454 U.S. 1128, 71 L. Ed. 2d 116, 102 S. Ct. 980 (1981). The court held that if the action was to continue in the federal courts, jurisdiction must be based on diversity of citizenship. 28 U.S.C. § 1332.

 In applying state law, following what is assumed to be the mandate of Klaxon, the choice of law methodology used by the states in which transferor courts sit has been examined to predict what law each state would apply.

 We recognize that Klaxon has been widely criticized and that learned scholars have suggested on the basis of policy and possible constitutional grounds that a federal conflicts of law rule should be applied in diversity cases such as the one before us. See, e.g., R. Bridwell & R. Whitten, The Constitution and the Common law 135 (1977); R. C. Cramton, D. P. Currie & H. H. Kay, Conflict of Laws, 927-932 (3d ed. 1981); Hart & Wechsler's The Federal Courts and the Federal System, 713-717 (2d ed. by P. M. Bator, P. V. Mishkin, D. L. Shapiro & H. Wechsler, 1973); W. L. M. Reese & M. Rosenberg, Conflict of Laws, 692, 694-695 (7th ed. 1978); E. F. Scoles & P. Hay, Conflict of Laws 112 (1982); C. Wright, Law of Federal Courts, 366-370 (4th ed. 1983); Hill, The Erie Doctrine and the Constitution, 53 Nw. U.L. Rev. 427, 444-45 (1958); Korn, The Choice of Law Revolution: A Critique, 83 Colum. L. Rev. 772, 971 (1983); Trautman, The Relation Between American Choice of Law and Federal Common Law, 41 Law and Contemp. Prob. 105, 120 (Spring 1977). The Supreme Court has, however, "made it clear that the Klaxon rule is not to yield to the more modern thinking of conflicts-of-laws scholars." C. Wright, id. at 368. See, e.g., Day and Zimmermann, Inc. v. Challoner, 423 U.S. 3, 96 S. Ct. 167, 46 L. Ed. 2d 3 (1975).

 Much of the law of conflicts is in a state of flux, development and refinement. Any dogmatism as to the result were the issue to be certified to the highest court of each jurisdiction involved is unwarranted. See, e.g., the most current authoritative and comprehensive review of choice of law problems, Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 772, 956 (1983), and the shorter but trenchant Juenger, Conflict of Laws: A Critique of Interest Analysis, 32 Am. J. of Comp. L. 1(1984). Nevertheless, given the special facts of this litigation, under any approach utilized today, so far as can reasonably be predicted, the result would be the same: each state would probably apply the same law, that is to say either federal or national common law.

 Before starting the analysis, it is well to keep in mind the admonition of Chief Judge Fuld whose "impact upon choice of law has been greater than that of any living judge and probably greater than that of any judge during the present century." Reese, Chief Judge Fuld and Choice of Law, 71 Colum. L. Rev. 548, 548 (1971).

 Justice, fairness and "the best practical result" . . . may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.

 Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279, 283 (1963). Hope of obtaining a universally accepted result is tempered by Professor von Mehren's reminder that

 one who expects to achieve results in multistate cases that are as satisfying in terms of standards of justice and of party acceptability as those reached in purely domestic cases is doomed to disappointment.

 von Mehren, Choice of Law and the Problem of Justice, 41 Law & Contemporary Problems 27, 42 (1977).

 In view of a growing consensus about what the law governing manufacturer's liability is -- a problem to be dealt with in a subsequent opinion -- there is a convergence between the result required in the instant case under the separate state conflicts of law rules and the separate state substantive tort rules. Thus, the obviously sensible result of treating members of this nation's armed forces and their families in essentially the same way for any injuries suffered in a national war fought on foreign soil would, it is now provisionally found, be reached by each of the states.

 The issue is particularly difficult to deal with because of a number of definitional and conceptual issues that tend to make some problems appear more murky than they are. While we disclaim any capacity to clarify the law of conflicts, it does seem helpful for purposes of this opinion to restate some definitions and distinctions.

 Essentially, there are five different conflicts of laws methodologies widely used in this country. These may be summarized as (1) traditional or Restatement (First) based upon Professor Beale's work, (2) Restatement (Second) being in large part a pragmatic and conservative revision by Professor Reese of Professor Currie's interest analysis school, (3) governmental interest, (4) Leflar, and (5) forum. There is a sixth proposed approach that has some of the aura of Leflar, but which we treat separately as the von Mehren approach. Some states use a combination or variation of these techniques. See, e.g., for various other characterizations of state approaches: R. C. Cramton, D. P. Currie & H. H. Kay, Conflicts of Law, 326 ff. (3d ed. 1981); W. L. M. Reese & M. Rosenberg, Conflicts of Laws, 478 ff. (7th ed. 1978); Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 779-780, 819-820 (1983) (stressing New York cases); Rosenberg, The Comback of Choice-of-Law Rules, 81 Colum. L. Rev. 946 (1981) (stressing California cases). For purposes of this opinion, we have eschewed specific discussion of the effects of modern doctrine leading to renvoi (see, e.g., W. L. M. Reese & M. Rosenberg, Conflicts of Laws 550 (7th ed. 1978) ("Renvoi Returns")), or the increased likelihood of depecage, applying the law of different jurisdictions to different aspects of the case (R. J. Weintraub, Commentary on the Conflict of Laws 72 (2d ed. 1980)), though, as will be seen, both doctrines are implicated in the present case. Finally, it is unnecessary to consider whether any state's conflict of law rule would deprive a litigant of due process, equal protection, or other constitutional right since each of the states whose conflict rule might apply has sufficient nexus with the matter through residence or the like. See, e.g., R. C. Cramton, D. P. Currie & H. H. Kay, Conflict of Laws, 499-508 (3d ed. 1981); Hart & Wechsler's The Federal Courts and the Federal System, 717-718 (2d ed. by P. M. Bator, D. L. Shapiro, P. J. Mishkin & H. Wechsler, 1973). Cf. Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 (1981), discussed in Currie, The Supreme Court and Federal Jurisdiction: 1975 Term, 1976 Sup. Ct. Rev. 183, 217 (questioning constitutionality), and Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 772, 792-799 (1983).

 A. Federal Law -- for jurisdictional purposes; for substantive purposes; for evidentiary and procedural purposes; and as a model for the states to incorporate in their own law. As already suggested, the Court of Appeals has decided that there is no federal substantive law directly controlling in this case upon which federal question jurisdiction of federal district courts may be based under 28 U.S.C. § 1331.Thus, this is not a civil action "arising under the . . . laws . . . of the United States." Id. Federal substantive law -- that is, the law of the United States Congress, Executive and courts -- does not, according to the Second Circuit, apply by direct authority and compulsion of the federal government and the Supremacy clause of the Constitution. For procedural purposes, however, the federal rules of procedure and evidence apply. Federal Rules of Evidence, Rules 101; Federal Rules of Civil Procedure, Rule 1. This means, for example, that in this case, based upon the predicate of diversity of citizenship jurisdiction, the Federal Rules of Civil Procedure governing class actions control. See In re "Agent Orange" Product Liability Litigation, P.T.O. 72, F. Supp. (E.D.N.Y. Dec. 16, 1983) (class action certification).

 Even though federal substantive law does not control by its own force, states will often look to non-controlling federal decisions, statutes, executive orders and administrative decisions in deciding what state policy and substantive law ought to be. "The overarching presence of federal law has moved state judges to view federal law . . . as a source of inspiration for the development of a state jurisprudence." The Supreme court, 1982 Term, 97 Harv. L. Rev. 70, 224 (1983) (commenting on Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), presuming state decision is based upon federal law in case of ambiguity). Often, then, federal substantive law becomes state substantive law, not because the federal government has willed it so, but because the state has deemed it should be so through its governing institutions including the state's courts.

 B. State Law. By "state law" we mean the substantive law, as far as it can be predicted to be, devised and enforced by the state within the limits of its constitutional powers. Since this is a diversity jurisdiction case, pursuant to 28 U.S.C. § 1332, this court, as to those claims originally filed in this court, sits much as a state trial court would in New York, applying New York substantive law except when, under the New York law of conflicts, a New York court would look to substantive law would apply. Cases commenced in other districts are treated as if they are pending in those other districts whether transferred to this court for pretrial purposes under the multi-district litigation statute, 28 U.S.C. § 1407, or transferred for trial for the convenience of witnesses, 28 U.S.C. § 1404. See Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964); W. L. M. Reese & M. Rosenberg, Conflict of Laws, 194-96 (7th ed. 1978); R. J. Weintraub, Commentary on the Conflict of Laws, 584-87 (2d ed. 1980); Note, Choice of Law in the Federal Court after Transfer of Venue, 63 Cornell L. Rev. 149 (1977).

 Certifying this as a class action with residents of different states as plaintiffs does not, we assume for present purposes, by analogy to Van Dusen v. Barrack, reduce all disputes within the litigation to one subject to the substantive and conflicts of laws rules of New York. This is arguably clear where the suits were begun in other states and transferred to this court under section 1404 or 1407 of Title 28. It also may be assumed to be the case as to those plaintiffs who never brought suit, but became parties as a result of certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Where relevant state substantive and conflicts rules are not uniform, certification does not, we will assume, provide uniformity. Cf. Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1023, 85 L. Ed. 1477 ; Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); In re No. Dist. of Cal. "Dalkon Shield" IUD Products Liability Litigation, 693 F.2d 847, 850 (9th Cir. 1982), cert. denied sub nom. A. H. Robins v. Abed, 459 U.S. 1171, 103 S. Ct. 817, 74 L. Ed. 2d 1015 (1983).

 This assumption is made despite the contrary argument -- with great appeal for reasons beyond the scope of this opinion -- that these class members are subject to New York conflicts law since they constructively sued in the New York case by analogy to Fed.R.Civ. P. Rule 24 (intervention) or Rule 42 (consolidation). Although we do not find it necessary to adopt this argument, it is clear that class action certification provides no added support for applying conflicts of law rules to require differing substantive law. Cf. Young v. That Was The Week That Was, 312 F. Supp. 1337 (N.D. Ohio 1969), aff'd, 423 F.2d 265 (6th Cir. 1970) (class action certification, particularly where the law respecting conflicts was not clear, warranted using the law of one state even though members of the class came from many states whose law would apply under traditional conflicts rules).

 C. National-Consensus Law. While those close to the American law scene tend to emphasize the diversity of substantive law among the states and between the states and the federal government, to outside observers much of the differences must appear as significant as that among the Lilliputans to Swift's hero. Faced with a unique problem, American lawmakers and judges tend to react in much the same way, arriving at much the same result.

 There are, of course, centrifugal forces in the law leading to different substantive and procedural results even in a single nation like the United States. With thousands of municipalities, 50 states, the District of Columbia and the Federal jurisdiction having many law-creating legislative bodies, executive departments, administrative bodies, and courts, this is to be expected. Yet, powerful centripetal tendencies often encourage the formulation of national consensus law. First, is the essential homogeniety of our unified technological-social structure increasingly tied together by national transportation, communication and educational-cultural networks. Second, is an Anglo-American legal system with common roots and a strongly integrated law school educational system relying upon national scholars, treatises and cases. National casebooks and fungibility of teaching materials, for example, create a strong unifying influence making it possible for lawyers to be trained in one section of the country and to transfer to other areas for practice. It allows development of a national bar examination and a national bar even though lawyers are licensed in different states.The result is that law-making and law-applying authorities tend to utilize national standards and approaches.

 Institutions such as the American Law Institute with its Restatements, the National Commissioners on Uniform State Laws with many widely-adopted uniform statutes and the National Municipal League with its uniform charters aid these unifying national tendencies. So, too, do many quasi-public bodies setting manufacturing and safety standards. The pressure, for example, for a uniform manufacturers liablity substantive law is well known, having even led the Department of Commerce to draft federal legislation on the subject.

 When presented with a new problem, we tend to proceed by analogy and by precedent. Analogies available are much the same for all courts. Even though one state is not bound by the precedens of another, when a new problem arises courts tend to follow the decisions of courts of other American jurisdictions since the reasoning and pool of factual and legal data will tend to be the same.

 The concept of a national law already exists in federal common law since federal law, by definition, is created to deal with problems that are national in scope.In determining the content of that federal law courts have long looked to state law sources, the Restatement of Law of the American Law Institute and other "non-federal" sources.See, e.g., Miree v. DeKalb County, 433 U.S. 25, 30, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977); Clearfield Trust Co. v. United States, 318 U.S. 363, 367, 63 S. Ct. 573, 575, 87 L. Ed. 838 (1943); Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir.), cert. denied, 444 U.S. 980, 100 S. Ct. 483, 62 L. Ed. 2d 407 (1979); Southern Pacific Transportation Co. v. United States, 462 F. Supp. 1193 (E.D. Cal. 1978); Weinberger v. New York Stock Exchange, 335 F. Supp. 139, 143 (S.D.N.Y. 1971).

 We need not leave to speculation the assumption that states recognize this Agent Orange litigation as one 1) with strong national overtones and 2) that is sui generis. Some states have enacted statutes of limitations expressly extending the time available for "Agent Orange" plaintiffs to sue.See, e.g., 1983 Conn. Pub. Acts No. 83-15; N.Y. Civ. Pract. R. § 214-b (McKinney 1983); Ohio Rev. Code Ann. § 23.05.10; R.I. Gen. Laws § 9-1-14.2; W. Va. Code § 16-28-10. Other state legislatures have set up commissions and outreach programs to study the problem and assist veterans or their dependents in pursuing Agent Orange claims against the United States. See, e.g., Assembly Bill No. 14, 1982 Cal. Legis. Serv. Ch. 48 (West); 1981 Ill. Laws 82-116; 1983 Ill. Laws 83-283; 1983 Ind. Acts 1122; Ind. Code Ann. § 10-5-241 to § 10-5-24-3; 1983 Iowa Acts 617; Kan. Stat. Ann. § 73-1701 to § 1703; Minn. Stat. Ann. § 196.19 to § 196.26 (West 1984); Minn. S. Res. 9, 1983, Minn. Sess. Law Serv.; Okla. Stat. Ann. tit. 72, § 350 to § 358; 1983 Or. Laws C. 658, Pa. Stat. Ann. Tit. 51, § 20271 to § 20182 (Purdon); Tex. Rev. Civ. Stat. Ann. art. 4447W; W. Va. Code § 16-28-1 to § 16-28-10.

 II. Claims of Defendants and Misunderstanding of Posture of Case

 With this general background we may now examine defendants' contentions that the Court of Appeals' decision that plaintiffs did not state a cause of action under federal common law forbids this court from using any single rule of substantive law. They argue in summary that (1) federal common law may only be applied where there is a substantial federal interest at stake, (2) the Second Circuit's decision constitutes a determination binding on this court that there is no such federal interest in this litigation, and (3) therefore, although they do not suggest any rational way by which a state may choose one state's law to apply, they conclude that this court may not apply federal or national consensus common law to any issue. Further, they suggest that there is no single national consensus substantive law (although at least one defendant on oral argument urged that the government contract defense rested on a national consensus).

 Defendants misstate the holding of the Court of Appeals. That decision was jurisdictional only -- that the federal courts did not have jurisdiction under 28 U.S.C. § 1331. It did not constitute a determination that the state courts could not or would not look to other law, whether state, federal, or national consensus, if their choice of law rules so dictated. There is no necessary congruity between the basis for competence of a court and the basis for choice of law. Cf. Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L.Rev. 772, 781-787 (1983) (relation between choice of law bases and in personam jurisdiction bases). Nor did the Court of Appeals decide that there was no substantial federal interest in the case. On the contrary, it is clear from the opinion that it did not disagree with this court's conclusion that there are "substantial federal interests that would be adversely affected by application of state law to the instant claims and . . . that there [are] no substantial state interests in having state law applied." 635 F.2d at 991. See id. at 993 n.11. Rather, the Court of Appeals found that although the federal government had an interest in both the plaintiffs as former servicemen and the defendants as defense contractors, those "two interests have been placed in sharp contrast with one another." Id. at 994. Because of this clash and the fact that "the federal government['s] . . . interest in the outcome of the litigation, i.e. in how the parties' welfares should be balanced, is as yet undetermined," id. at 995 (emphasis in original), the Court of Appeals determined that there was no "significant conflict between [identifiable] federal policy or interest and the use of state law." Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S. Ct. 1301, 1304, 16 L. Ed. 2d 369 (1966), quoted in Agent Orange, 635 F.2d at 993. As a result, the strict requirements for the application of federal common law of its own force were, according to the Court of Appeals, not met. There have been several developments since the Second Circuit's decision that are material to an understanding of its scope, rationale and holding.

 First, the Second Circuit has declared that it has not yet decided whether or not the government contract defense is governed by federal law. In re "Agent Orange" Product Liability Litigation, F.2d , n.2, 83-3065, slip op. at 9 n.2 (2d Cir. Jan. 9, 1984). That point seems clear since any such decision on a defense raised by answer would have been irrelevant to federal question jurisdiction. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 2846-47, 77 L. Ed. 2d 420 (1983); Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S. Ct. 654, 38 L. Ed. 511 (1894).

 Second, subsequent to the Second Circuit's decision, there has been a further expression by the federal government of its interest in the issues raised by this case. In Pub. L. No. 97-72, 95 Stat. 1047 (1981), Congress authorized the Veterans Administration to provide veterans who were exposed to Agent Orange and who claim injury from such exposure out-patient and in-patient hospital and nursing home care at VA facilities without a need to prove a causal relationship between the exposure and the illness. It has also expanded significantly the scope of the study of the effects of Agent Orange on Vietnam veterans, originally ordered by Pub. L. No. 96-151, 93 Stat. 1097 (1979). Both the Veterans Administration and Congress are actively studying the effects of Agent Orange on veterans. The Vietnam Veterans' Agent Orange Relief Act: Hearings on H.R. 1961 Before the Subcomm. on Compensation, Pension, and Insurance of the House Committee on Veterans' Affairs, 98 Cong., 1st Sess. 11 (1983) (statement of Harry Walters, Administrator, Veterans' Administration, noting the government studies that are underway on Agent Orange); id. at 123 ff. (statement of Dorothy Starbuck, Chief Benefits Directors, Veterans' Administration, commenting on H.R. 1961 and noting the various diseases from which Agent Orange victims allegedly suffer).

 Third, the Second Circuit's holding was premised at least in part on the fact that the claims "do not directly implicate the rights and duties of the United States" and that "no substantial rights or duties of the government hinge on the outcome." 635 F.2d at 993. While not decisive in connection with the instant conflicts of laws opinion, that is no longer true. As will be demonstrated in a forthcoming opinion, the government is a third-party defendant at least as to those claims alleging independent injury to wives, as by miscarriages, and to children, as by genetic damage.

 The difference between federal law applying of its own force under the Supremacy Clause, which the Second Circuit's decision forbids in part, and applying a form of national consensus law or of federal law itself because a state court chooses to look to it as the rule of decision is well accepted. For example, state courts, in interpreting their state's constitution and statutes, will often follow the federal constitution and statutory authority although they may not be required to do so. See, e.g., Jankovich v. Indiana Toll Road Comm'n, 379 U.S. 487, 85 S.Ct 493, 13 L. Ed. 2d 439 (1965) (Indiana Supreme Court's holding based on state constitutional grounds although elaborate use made of federal authority); Beeland Wholesale co. v. Kaufman, 234 Ala. 249, 260, 174 So. 516 (1937) (state court, upon direction of state legislature, passed on contention that federal statute was invalid because validity of state statute tied to federal statute). States will often look to federal tax laws and federal rules of procedure in formulating and interpreting their own. See, e.g., Idaho Code §§ 63-3001 to 63-3087 (Supp. 1971) (having stated aim of making taxable income "identical" with federal, subject only to specific modifications); Ky. Rev. Stat. Ann. § 141.010(9), 141.050 (1971) (gross income defined in terms of federal internal revneue code; explicit reference made to judicial interpretations of the federal code); see also Note, Supreme Court Review of State Interpretations of Federal Law Incorporated by Reference, 66 Harv. L. Rev. 1498 (1953). In all of the above example, states are looking to the federal government for the rule of decision despite the fact that no one would contend that the federal rule must be applied.

 Federal courts recognize this state practice when they apply federal law to a situation because they find the state court would apply it as a matter of policy. Compare Davis v. United Air Lines, 575 F. Supp. 677 (E.D.N.Y. 1982), (applying federal law to third-party beneficiary claim is diversity case because, under Klaxon, state would apply federal law) with Howard v. Uniroyal, Inc., 543 F. Supp. 490 (M.D. Ala. 1981) (applying federal law for identical claim because of Supremacy Clause). Cf. Southern Pacific Transp. Co. v. United States, 462 F. Supp. 1193, 1213-14 (E.D. Cal. 1978) (although Federal Tort Claims Act provides that state law is to be applied, if state would look to federal law, federal law will apply). Similarly, a state in applying a sister state's law, will generally do so as a matter of policy, not because the federal Constitution compels such application.

 It is also noteworthy that federal courts applying federal law in exercising federal question jurisdiction often look to state law to fill in large substantive gaps as in civil rights (42 U.S.C. § 1983) and other cases. See, e.g., cases collected in Wahba v. H. & N. Prescription Center, 539 F. Supp. 352, 357-358 (E.D.N.Y. 1982). Cf. Thompson v. Village of Hales Corners, 115 Wis.2d 289, 340 N.W.2d 704, 52 LW 2339 (Nov. 30, 1983) (in determining damages under § 1983, state court applies federal law which incorporates state law except when state law is incompatible with federal policy).

 This free interchange of federal and state law and the reliance on a common American fund of legal concepts is to be expected. We are, after all, as already noted, a single nation whose lawyers and judges think of themselves as members of a single American profession, with a common jurisprudence and a homogeneous society. Analytically, the difference between ruling federal and state substantive law is precise; in practice, the distinctions are often blurred or nonexistent.

 III. Conflict of Laws Rules

 While there are a number of analogous approaches and decisions, none is directly on point in connection with the special conflicts of law issue now posed. Accordingly, since "no clearly discernable and clearly applicable conflicts rule has been announced by the . . . state, the rule must be hypothesized to correspond with all available indices of what the rule would be if presently formulated" by the state courts. Stemple v. Phillips Petroleum co., 430 F.2d 178, 183 (10th Cir. 1970).

 Modern approaches, although differing in their formulations, mandate an analytical inquiry which is essentially the same.As Professor Leflar put it:

 [I]t appears that the various scholarly views concerning choice of law, developed during the last couple of decades, are being accepted by the courts as though they constituted one somewhat multi-faceted approach to the subject. Essentially, they are consistent with each other. Any one of them is likely to produce about the same result on a given set of facts as will another.

 The point to be emphasized is that the modern decisions, regardless of exact language, are substantially consistent with each other.

 Leflar, American Conflicts Law, § 109, p. 218 (3d ed. 1977). See also In re Air Crash Disaster Near Chicago, Ill. on May 5, 1979, 644 F.2d 594, 610 (7th Cir. 1981). The Restatement Second is the most comprehensive of the modern approaches. See Leflar, Choice of Law: State's Rights, 10 Hofstra L. Rev. 203, 206 (1981). To the extent that they differ from the current Restatement, other approaches are analyzed below.

 While not covering all of these techniques, the following analysis which touches upon the Restatement (Second), governmental interest, Professor Leflar's better law, traditional or Restatement (First), forum law and Professor von Mehren's ...


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