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Table of Contents

Introduction............................................

I. Enforcing Judgments..............................

A. Judgments From Other State and Federal Courts.....................................

B. Foreign Country Judgments...............

C. Collateral Estoppel or Issue Preclusive Effect of Foreign Judgment............................

D. Statutes of Limitations Applicable to Foreign Judgments.............................

II. Statutes of Limitations Applicable to Foreign Causes of Action....................................

III. Proving Foreign Law........................................

IV. Choice of Law..............................................

A. Procedure..........................................

B. Substance.....................................

1. Historical overview.....................

2. Property.................................

3. Marriage.....................................

4. Probate and Administration..............................

a. Wills.........................

b. Intestate succession........

5. Torts............................

6. Contracts..........................

a. Uniform Commercial Code...............

b. General Contracts.....................

c. Forum selection clauses..............

C. The Public Policy Exception....................

D. Renvoi........................................

V. Choice-of-Law Rules in Federal Court...................

A. Diversity Jurisdiction.......................

B. Federal Torts Claim Act............

C. Admiralty Cases...................

VI. Constitutional Limitations................................

A. Requirement That State Must Have Significant Contact For Its Law to Apply.................................

B. Choice-of-Law Rules That Discriminate Against Foreign Parties............................

1. Equal Protection.....................

2. Privileges and Immunities.....

VII. Sovereign Immunity........................................

A. Actions Against Foreign Countries.............

B. Actions Against Other States................

1. Federal court..............

2. State court.....................

Mississippi courts increasingly confront cases with multistate and multinational contacts in which some or all of the claims are governed by foreign law.⁽²⁾ The law of Conflict of Laws has undergone dramatic changes in the past few decades, and Mississippi rules depart, often radically, both from traditional approaches and from approaches in other states. Conflicts law has become complicated further by the growth of federal constitutional restrictions on state choice-of-law rules and, in a few areas, by federal statutes and treaties binding on the state.⁽³⁾

This Article considers common problems that arise in Mississippi conflict of laws cases. Part I discusses the enforcement of foreign judgments. Part II treats Mississippi statutes of limitations on foreign causes of action. Part III considers requirements for raising conflicts-of-law issues in state and federal courts and procedures for proving the content of foreign laws. Part IV examines general choice-of-law rules in Mississippi.⁽⁴⁾ Part V addresses special choice-of-law problems that arise in federal court. Part VI surveys important constitutional restrictions on the application of Mississippi law in cases that may be governed by other laws and also discusses special equal protection issues that can arise when Mississippi laws discriminate against persons based on their place of residence or citizenship. Part VII reviews limits placed by the doctrine of sovereign immunity on suits against foreign states and countries in state and federal courts in Mississippi.

I. Enforcing Judgments

A. Judgments From Other State and Federal Courts

The Constitution requires Mississippi to give "full faith and credit" to judicial proceedings in the courts of other states.⁽⁵⁾ Early federalist judges decided that the effect of a judgment would normally be determined by reference to the law of the state that entered the judgment.⁽⁶⁾ Federal legislation authorized by the Constitution⁽⁷⁾ provides specific procedural guidelines.⁽⁸⁾ Although the Constitution and federal statutes do not mention what credit states must give federal court judgments, state courts must give similar full faith and credit to federal court judgments.⁽⁹⁾

Mississippi has adopted the Uniform Enforcement of Foreign Judgments Act, which applies to judgments entered by state and federal courts⁽¹⁰⁾ but not to judgments from foreign countries. Under the Act, a judgment from a state or federal court may be authenticated in one of three ways: in accordance with the federal statute, in accordance with the state statutes, or in accordance with a rule adopted by Mississippi Supreme Court. Once authenticated, the judgment can be filed with the clerk of the circuit court in any county where it is then treated like a Mississippi state court judgment.⁽¹¹⁾ The Act provides for notice to the foreign judgment debtor,⁽¹²⁾ a twenty-day waiting period before executing on the judgment,⁽¹³⁾ and an opportunity for the judgment debtor to stay execution during any appeal taken in the foreign court⁽¹⁴⁾ or when authorized under Mississippi law.⁽¹⁵⁾

To be entitled to full faith and credit, a judgment must be a final judgment⁽¹⁶⁾ on the merits.⁽¹⁷⁾ Default judgments are on the merits, but judgments dismissing an action for lack of jurisdiction, lack of proper venue, or improper joinder are not on the merits.⁽¹⁸⁾ The judgment must have been entered by a court with proper jurisdiction.⁽¹⁹⁾ While some authorities suggest that judgments that are modifiable under foreign law need not be enforced,⁽²⁰⁾ some important modifiable judgments such as support decrees must be recognized and enforced under the force of the full faith and credit clause.⁽²¹⁾ The area of interstate enforcement of support obligations and custody rights is extensively regulated by legislation.⁽²²⁾

Foreign court judgments dismissing under statutes of limitations present special problems. Such dismissals were not traditionally considered to be on the merits and were consequently not binding under the full faith and credit clause.⁽²³⁾ But this practice was grounded on the traditional assumption that most statutes of limitations were procedural rather than substantive. A dismissal that operated to affect substantive rights--for example a dismissal that vested title in the defendant by means of adverse possession--would presumably be entitled to full faith and credit. But today many states consider statutes of limitations substantive. In Mississippi, for example, while foreign statutes of limitations are treated as procedural, the expiration of the local limitations periods operates to extinguish substantive rights as well to cut off any remedy.⁽²⁴⁾ The traditional rule that statutes of limitations dismissals are not on the merits thus constitutes a federally created exception to full faith and credit.⁽²⁵⁾ To the extent the exception was rooted in uniform state practices that have changed, the better approach, one more consistent with the historical rationale for the exception, might be for states to be constitutionally compelled by full faith and credit to give preclusive effect to foreign dismissals when they are considered to be on the merits by the courts that dismissed the actions.⁽²⁶⁾

While Mississippi may not be constitutionally required to give full faith and credit to statutes-of-limitations dismissals from other states, neither is it prohibited from doing so. Nevertheless, the Mississippi Supreme Court has decided that, in the absence of constitutional obligations to recognize dismissals from other state courts, it will permit such claims to be relitigated⁽²⁷⁾--at least when the statute of limitations is deemed procedural.⁽²⁸⁾

In contrast, federal courts in Mississippi dismiss claims that have been dismissed as time barred by other state courts even when Mississippi state courts permit such claims to be relitigated.⁽²⁹⁾ This is not inconsistent with federal courts' obligations under the Rules of Decision Act⁽³⁰⁾ and the Erie doctrine⁽³¹⁾ to apply Mississippi statutes of limitations, for the res judicata effect of judgments in federal court is a matter of federal law, and federal courts applying their own principles of res judicata, barring claims that have been previously dismissed by another state, deferring to the law of the rendering state⁽³²⁾ rather than to the law of the state in which they sit.

No public policy exception permits a state to escape its obligation to accord full faith and credit to judgments from other states, and Mississippi cannot avoid enforcing a judgment from another state because the original cause of action is repugnant to Mississippi law.⁽³³⁾ Under older authority, now much questioned, full faith and credit did not require a state to recognize another state's penal judgment,⁽³⁴⁾

but, in any event, exception did not extend to foreign judgments for punitive damages, which are entitled to full faith and credit.⁽³⁵⁾

Full faith and credit extends to some equity decrees, notably divorce decrees,⁽³⁶⁾ equitable orders for the payment of money,⁽³⁷⁾ and declaratory judgments.⁽³⁸⁾ But other orders enjoining conduct may not be binding under full faith and credit when the conduct enjoined offends Mississippi public policy or when the foreign court order interferes with matters within Mississippi's jurisdiction.⁽³⁹⁾ Applying principles of comity, older Mississippi cases enforced foreign injunctions restraining foreign parties from prosecuting claims in Mississippi courts,⁽⁴⁰⁾ but the Mississippi Supreme Court has more recently declined to honor such an injunction designed to prevent a litigant from obtaining more favorable law in Mississippi: a foreign court order will not be recognized when it interferes with a plaintiff's right to litigate in Mississippi.⁽⁴¹⁾

The foreign state forum need not be a court, and full faith and credit applies to administrative determinations in other states.⁽⁴²⁾ Workers compensation decisions are covered by the full faith and credit clause but are not treated exactly like judgments from courts. While the credit due a state judgment is determined by reference to the law of the state that rendered it, the Supreme Court has permitted certain supplemental workers compensation awards even when such additional awards are barred by the law of the state granting the first award.⁽⁴³⁾ The second state must respect the factual determinations of the first workers compensation tribunal⁽⁴⁴⁾ but need not recognize the limits on or finality of its award. The Supreme Court justified permitting supplemental awards by balancing the first forum's interest in finality against the second forum's interest in compensation.⁽⁴⁵⁾ The underlying rationale for the exceptional treatment of workers compensation is open to criticism and failed to gain a majority on the Court,⁽⁴⁶⁾ but a plurality defended the special treatment of workers compensation by emphasizing differences between informal workers compensation proceedings and judicial proceedings. The plurality pointed out that workers compensation claims are presented informally, often without advice of counsel, without due consideration of choices of forum, and, in many states, without the opportunity for the workers compensation tribunals themselves to apply foreign law.⁽⁴⁷⁾ The problem with the plurality's explanation, criticized by the concurrence and commentators, is that similar informalities characterize many other kinds of proceedings including some courts.⁽⁴⁸⁾

Faced with prior inconsistent judgments from other states, a state court must give full faith and credit to the most recent judgment.⁽⁴⁹⁾

B. Foreign Country Judgments

The Constitution does not compel Mississippi to give full faith and credit to judgments from foreign countries, nor is there a federal treaty that requires the enforcement of foreign country judgments. Nevertheless, Mississippi courts will enforce foreign country judgments under principles of res judicata and comity.⁽⁵⁰⁾ Requirements for enforcing foreign country judgments were set forth by influential nineteenth-century treatises and are known as the Kent-Story Rule. Justice Gray expressed the rule in the influential opinion in Hilton v. Guyot:

In view of all the authorities upon the subject, and of the trend of judicial opinion in this country and in England following the lead of Kent and Story, we are satisfied that where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system or jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.⁽⁵¹⁾

Under this rule, a foreign country judgment from a judicial system that provides impartial tribunals is enforceable unless: 1) the foreign court lacked jurisdiction; 2) the judgment was procured by fraud; 3) the judgment was founded on clear mistake or irregularity; 4) the judgment was bad by the law of the place where it was rendered; or 5) the foreign jurisdiction rendering the judgment did not recognize American judgments. Different procedures, such as the admission of unsworn and hearsay evidence or the absence of a right to cross-examine, do not prevent enforcement of the foreign country judgment.⁽⁵²⁾

The Kent-Story rule is similar to the approach set forth in the Uniform Foreign Country Money-Judgment Recognition Act which has been adopted by twenty-six states and the District of Columbia (but not Mississippi).⁽⁵³⁾ Under the Act, a foreign country judgment granting or denying a claim for money is "enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit"⁽⁵⁴⁾ when the judgment has become "final and conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal."⁽⁵⁵⁾ Nevertheless, such a judgment is not conclusive if:

1) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

2) the foreign court did not have personal jurisdiction over the defendant; or

3) the foreign court did not have jurisdiction over the subject matter.⁽⁵⁶⁾

Moreover, unlike the judgment from a sister state, a foreign country money judgment need not be recognized if:

1) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;

2) the judgment was obtained by fraud;

3) the [cause of action] [claim for relief] on which the judgment is based is repugnant to the public policy of this state;

4) the judgment conflicts with another final and conclusive judgment;

5) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or

6) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.⁽⁵⁷⁾

Accordingly, a foreign country judgment can be challenged on grounds that the underlying claim offended Mississippi public policy, whereas a money judgment from a sister state could not be denied enforcement on public policy grounds.

Hilton v. Guyot imposed a fifth requirement for enforcement of foreign country judgments--reciprocity. It held that the French judgements in that case should not be given preclusive effect because France did not give preclusive effect to United States judgments.⁽⁵⁸⁾ The reciprocity requirement was controversial from the start,⁽⁵⁹⁾ and has been criticized by scholars.⁽⁶⁰⁾ Reciprocity punishes private litigants in order to advance a policy goal of encouraging foreign states to recognize the forum's own judgments. Reciprocity also punishes the forum in order to promote these policy goals, because the forum shares the foreign court's interest in finality. And it has been questioned whether such foreign policy goals are an appropriate concern of the judiciary to begin with.⁽⁶¹⁾

Announced as a rule of federal common law in a diversity case, the Hilton decision was never binding on states, and its authority in federal courts has been questioned under the Erie doctrine.⁽⁶²⁾ Neither statute nor case law in Mississippi requires reciprocity.

C. Collateral Estoppel or Issue Preclusive-Effect of Foreign Judgment

The previous sections have considered the enforcement of claims between parties that have been reduced to final judgment in foreign jurisdictions. When there is a valid judgment from another jurisdiction, it stands to reason that the foreign jurisdiction's law should also determine what legal claims have been determined by the judgment. In other words, the law of the state or country rendering the judgment should control the bar or merger effect of the foreign judgment.⁽⁶³⁾

Sometimes, however, parties introduce a foreign judgment not to enforce or bar claims reduced to judgment but rather to prevent relitigation of certain facts or issues that were determined in the foreign judgment.⁽⁶⁴⁾ Such cases do not directly concern the enforcement of the rights reduced to judgment but rather the evidentiary or procedural weight to be accorded the foreign court's determination of disputed issues.⁽⁶⁵⁾ Accordingly, this Article proposes that the collateral estoppel or issue-preclusive effect of foreign judgments should be determined by Mississippi forum law, when there is a difference between the collateral estoppel rules of the rendering state and Mississippi.⁽⁶⁶⁾

Although some scholars have asserted that all preclusive effects a foreign judgment must be determined by the law of rendering jurisdiction,⁽⁶⁷⁾ including its evidentiary effect in other jurisdictions, the authority for this assertion is weak.⁽⁶⁸⁾ In full faith and credit cases, the Supreme Court has unambiguously held only that parties are precluded from relitigating jurisdictional defenses that the foreign state rejected in the process of entering judgment on claims between the parties.⁽⁶⁹⁾ The Court's rationale for doing so relied on the need to avoid erosion of the claim preclusive effect of judgments on parties to prior litigation.⁽⁷⁰⁾

Mississippi state courts are accordingly free to apply forum rules of collateral estoppel and have done so to preclude relitigation of issues that were fully determined in foreign litigation even when the foreign jurisdiction would permit relitigation,⁽⁷¹⁾ though, of course, Mississippi courts may not give effect to an invalid foreign judgment.⁽⁷²⁾

The practice is different in federal courts. Federal courts do not apply Mississippi's law to the issue-preclusive effect of a foreign judgment. Consistent with this Article's suggestion that the issue-preclusive effect of foreign judgments is a matter of evidence or procedure, federal courts apply their own federal rules, deferring to the law of the rendering state rather than to the law of the state in which they sit. Thus federal courts will not give a state judgment greater preclusive effect than the state rendering it.⁽⁷³⁾

D. Statutes of Limitations Applicable to Foreign Judgments

The full faith and credit clause does not require Mississippi to enforce a foreign judgment for as long as the state that entered it, and Mississippi may apply its own statutes of limitations to foreign judgments⁽⁷⁴⁾ just as it may to foreign claims that have not been reduced to judgment.⁽⁷⁵⁾ But when a foreign judgment is revived in another jurisdiction and effect of the revival in that jurisdiction is to create a new judgment, Mississippi must calculate the time for purposes of its statute of limitations from the date of revival,⁽⁷⁶⁾ just as the limitations period applicable to a second judgment entered on a foreign judgment runs from the entry of the second judgment.⁽⁷⁷⁾

Actions to enforce foreign judgments must be brought within seven years of the entry of judgment⁽⁷⁸⁾--the same time for actions on Mississippi state court judgments.⁽⁷⁹⁾ But the period for bringing claims on foreign judgments is reduced to three years when the judgment debtor was a Mississippi resident at time of original action.⁽⁸⁰⁾ An older case upheld this statutory protection of Mississippi defendants against a full faith and credit clause challenge,⁽⁸¹⁾ but this discrimination in favor of Mississippi judgment debtors may not survive constitutional challenges under the Mississippi state constitutional guaranty of equal access to judicial remedy,⁽⁸²⁾ or under the equal protection⁽⁸³⁾ and privileges and immunities clauses.⁽⁸⁴⁾

Despite criticism, the Mississippi Supreme Court adhered to the doctrine that limitations are procedural.⁽⁸⁷⁾ But problems of forum shopping have been reduced siginficantly by the adoption of a borrowing statute by the Mississippi legislature.⁽⁸⁸⁾

Even before the adoption of the borrowing statute, courts recognized two exceptions to the general rule that statutes of limitations are procedural: 1) where the foreign limitations period is "built in" to the cause of action or contained in legislation creating the cause of action so that its expiration is construed to extinguish the right as well as the remedy;⁽⁸⁹⁾ and 2) where the limitation extinguishes substantive rights under the law of the place where the claims arose.⁽⁹⁰⁾ In these two cases a foreign substantive statute of limitations would apply to claims that arose in the foreign jurisdiction. But now that Mississippi has abandoned rigid territorial choice-of-law rules, the choice among conflicting substantive statutes of limitations might be resolved by applying the limitations period of the state with the most significant relationship to the parties and occurrence with respect to that issue.⁽⁹¹⁾

Except for these exceptions, statutes of limitations are procedural, and to avoid attracting foreign plaintiffs seeking the boon of Mississippi's longer limitations period, Mississippi enacted a borrowing statute.⁽⁹²⁾ The statute applies the foreign statute of limitations when the foreign limitations period is shorter⁽⁹³⁾ and the cause of action accrued outside Mississippi. As a legislative compromise, the statute provides an exception for Mississippi residents who still get the benefit of the longer Mississippi statute of limitations on most causes of action that accrue out of state.⁽⁹⁴⁾

Easy to apply in most cases, the borrowing statute nevertheless raises a few questions that have not yet been authoritatively answered. First, there can be questions about where a cause of action accrued.⁽⁹⁵⁾ Two closely related claims for personal injury or death based on negligence and breach of warranty for a defective product may accrue in different states and be governed by different statutes of limitations.⁽⁹⁶⁾ Second, there are problems presented by the special treatment accorded Mississippi residents. The statute's language is ambiguous about the time at which a plaintiff needs to be a Mississippi resident.⁽⁹⁷⁾ Recognizing residency acquired after a cause of action accrued may encourage forum shopping and seems at odds with the court's refusal to consider after-acquired domicile in choice-of-law determinations,⁽⁹⁸⁾ but the legislature may have intended broadly to benefit all Mississippi residents, a remedial law may be liberally construed, and recognizing after-acquired domicile might even find some support under the strange version of the predecessor of the borrowing statute.⁽⁹⁹⁾

The borrowing statute's preferential treatment of Mississippi residents may raise equal protection or privileges and immunities clause problems.⁽¹⁰⁰⁾ A comparable constitutional problem with the Mississippi statute that tolls the running of statutes of limitations during a nonresident's absence from the state⁽¹⁰¹⁾ is avoided by judicial construction limiting it to cases where defendants are unamenable to service under the long-arm statute or other means.⁽¹⁰²⁾

In federal court practice, however, a party must give written notice of an intent to raise an issue concerning the law of a foreign country either in the pleadings or in some other written form; the court may consider any source; and its determination is reviewable as a question of law.⁽¹⁰⁷⁾ A similar standard applies to the review of federal trial court determinations of state law, including of the law of the state in which it is sitting.⁽¹⁰⁸⁾

These procedures facilitate proof of foreign law by informal but reliable sources. In addition, parties may introduce proof under rules of evidence, including opinion testimony of a properly qualified expert witness.⁽¹⁰⁹⁾

When Mississippi law is unsettled, the United States Supreme Court and any United States Court of Appeals may certify questions to the Mississippi Supreme Court for an authoritative written construction of Mississippi law.⁽¹¹⁰⁾ Most other states have similar rules that allow questions to be certified.⁽¹¹¹⁾

In cases where there is no adequate proof of foreign law in the record, jurisdictions are divided over the appropriate judicial response. There are three possibilities: 1) the court may apply forum law (an approach supported by the traditional presumption that foreign common law is identical to forum law in the absence of proof to the contrary);⁽¹¹²⁾ 2) the court may dismiss the claim (or bar the defense) on the theory that the party failed in its duty to make out a prima facie case;⁽¹¹³⁾ or 3) the court may make certain reasonable presumptions about foreign law.⁽¹¹⁴⁾ Although it has never directly addressed the issue,⁽¹¹⁵⁾ the practice of the Mississippi Supreme Court combines the second two approaches: it will not refuse to consider foreign law because a party failed to bring it to the trial court's attention,⁽¹¹⁶⁾ but the party seeking the benefit of foreign law cannot rely on the court's diligence, and when the court remains unsatisfied with its ability properly to construe foreign law because of an inadequate record, the court has abstained from deciding issues of foreign law.⁽¹¹⁷⁾

A. Procedure

Traditionally, even in cases where foreign law governed substantive rights and liabilities, courts would apply their own forum law to matters of procedure and remedy.⁽¹¹⁸⁾ Although the traditional distinction between substance and procedure has been questioned⁽¹¹⁹⁾ and abandoned by many states, Mississippi continues to apply Mississippi forum law to issues it deems procedural and remedial.⁽¹²⁰⁾

The first task in making a choice of law is, therefore, to determine whether an issue is procedural and governed by Mississippi law or substantive and governed by the law selected by Mississippi choice-of-law rules.⁽¹²¹⁾ The cases provide guidance.⁽¹²²⁾ Matters relating directly to rules of pleading,⁽¹²³⁾ evidence⁽¹²⁴⁾ and remedy are governed by Mississippi law.⁽¹²⁵⁾ The award of attorney's fees is remedial and governed by Mississippi law.⁽¹²⁶⁾ Presumptions and burdens of proof are procedural,⁽¹²⁷⁾ as is a foreign direct action statute authorizing claims against a tortfeasor's insurer.⁽¹²⁸⁾ But the cases do not follow a logical distinction between rules that regulate procedure and rules that establish rights or defenses. For example, cases hold that the defenses of spousal and parental immunity are procedural,⁽¹²⁹⁾ but they hold that a testimonial privilege is substantive⁽¹³⁰⁾ as is the attorney-client privilege.⁽¹³¹⁾ So, too, the availability of punitive damages⁽¹³²⁾ and the construction and interpretation of contract are substantive and are governed by the law selected by choice-of-law rules rather than forum law.⁽¹³³⁾

Because the distinction between substance and procedure rests more on convention and tradition than on any identifiable, functional difference,⁽¹³⁴⁾ Mississippi courts will probably follow the conventional characterization of other issues as procedural such as who can and must be parties,⁽¹³⁵⁾ the time when an action is commenced,⁽¹³⁶⁾ the division of labor between judge and jury,⁽¹³⁷⁾ the competence and credibility of witnesses,⁽¹³⁸⁾ execution of judgment (including priorities and exemptions),⁽¹³⁹⁾ and, perhaps, limitations on damages for certain classes of claims.⁽¹⁴⁰⁾ Some things that may seem procedural are substantive according to older authority that may be persuasive in Mississippi courts, including the survival of actions,⁽¹⁴¹⁾ application of wrongful death statutes,⁽¹⁴²⁾ the measure of tort damages,⁽¹⁴³⁾ prejudgment interest for property damage,⁽¹⁴⁴⁾ postjudgment interest on foreign judgments,⁽¹⁴⁵⁾ and the parol evidence rule.⁽¹⁴⁶⁾

Statutes of frauds⁽¹⁴⁷⁾ present special problems. Under older authority, if a forum deemed its statute of frauds a condition of bringing an action, its own statute would bar a foreign contract that did not satisfy the formal requirements of the statute even if the contract was enforceable under foreign law. If the forum treated its statute as a rule of evidence, however, it would permit proof of the contract by other evidence even if the writing was insufficient.⁽¹⁴⁸⁾ And if a writing was a precondition of a valid contract under the law of the place of contracting, then the forum would require compliance with the foreign formal requirements.⁽¹⁴⁹⁾ Under this older approach, the Mississippi general statute of frauds would be evidentiary rather than an absolute precondition.⁽¹⁵⁰⁾ Accordingly, Mississippi courts should apply foreign statutes of frauds to foreign contract claims so long as there is other adequate evidence to support the claim under Mississippi rules of evidence.⁽¹⁵¹⁾ This approach is consistent with the trend to treat statutes of frauds as substantive and to apply the formal requirements of foreign law when contract claims are governed by formal law.⁽¹⁵²⁾ But the statute of frauds contained in the Mississippi Uniform Commercial Code may nevertheless apply in cases governed by the Code.⁽¹⁵³⁾

B. Substance

1. Historical overview

The law of conflict of laws was viewed in the early 1800s as a sort of international common law. Courts and scholars searched legal sources from different jurisdictions, especially judicial opinions, for evidence of common practices, convinced that law was evolving towards increased rationality and greater international uniformity.⁽¹⁵⁴⁾

By the early 1900s, conflicts law had undergone a transformation that paralleled modernist movements in other fields of law.⁽¹⁵⁵⁾ Courts and scholars refashioned conflicts doctrines into formal rules of broad application⁽¹⁵⁶⁾ through a process of abstraction that implicitly subverted the legal authority for particular rules.⁽¹⁵⁷⁾ Formalist commitment to rules was accompanied by the theory of vested rights that treated entitlements as things to be recognized and protected by law.⁽¹⁵⁸⁾ Formalism privileged the law of the place where events occurred giving rise to rights or obligations. For example, contracts were governed by the law of the place of contracting or performance,⁽¹⁵⁹⁾ torts by the law of the place of the injury.⁽¹⁶⁰⁾

In the mid 1900s, functionalism began to displace formalism in conflict of laws scholarship. Courts and scholars challenged the formalist vision of law, seeking extra-legal purposes for laws and viewing rights as something created by law.⁽¹⁶¹⁾ Professor Brainerd Currie's theory of Interest Analysis, which directed application of forum law whenever the forum state had an identifiable interest,⁽¹⁶²⁾ and other theories gained support.⁽¹⁶³⁾ Influential jurisdictions abandoned traditional rules,⁽¹⁶⁴⁾ and a second Restatement was published for Conflict of Laws that rejected rigid territorial principles in favor of balancing contacts and evaluating competing policy interests in conflicts cases.

By 1967 the Mississippi Supreme Court had signaled its willingness to consider adopting the newer approach in an appropriate case,⁽¹⁶⁵⁾ and the next year it announced its adherence to the newer approach of the Restatement Second.⁽¹⁶⁶⁾ Expressing a preference for forum law and a reluctance to apply laws repugnant to forum policy,⁽¹⁶⁷⁾ the court questioned the benefits of the traditional choice-of-law rule that applied the law of the place of the injury⁽¹⁶⁸⁾ and cited with approval recent scholarship critical of the traditional approach.⁽¹⁶⁹⁾ Finally, the court quoted in full Restatement Second sections applicable to the case,⁽¹⁷⁰⁾ thereby joining a growing number of jurisdictions that embraced the Restatement Second approach,⁽¹⁷¹⁾ and it has applied the Restatement Second approach consistently to substantive choice-of-law issues in every area of law since 1968.⁽¹⁷²⁾

The 1968 Revolution⁽¹⁷³⁾ in Mississippi conflicts law logically suggests that holdings of pre-1968 cases are unreliable guides for what the Mississippi courts will do today. But logic has not always triumphed, and older cases on point may still be influential even though the court has abandoned the underlying theory behind their holdings.⁽¹⁷⁴⁾ Nevertheless, pre-1968 cases are weak, if not inappropriate, authority for current Mississippi choice-of-law rules and recourse to such cases is inconsistent in theory⁽¹⁷⁵⁾ and risky in practice.

The Restatement Second follows the first Restatement in promulgating different choice-of-laws rules for different areas of substantive law. The same transaction or occurrence may give rise to liability under different theories, and plaintiffs have considerable control over the choice-of-law rules that will apply. A plaintiff who suffers personal injuries might assert tort-based claims for negligence or claims for breach of implied warranty sounding in contract. A party seeking compensation for an agreement that has gone bad might assert claims for contract, claims for quasi contract, or even seek imposition of a constructive trust on some proceeds of the transaction. Different choice-of-law rules may apply to each claim and closely related claims may end up being governed by the law of different states.⁽¹⁷⁶⁾

2. Property

In Mississippi rights in real property are determined by the most significant relationship approach of the Restatement Second.⁽¹⁷⁷⁾ Normally, as under the traditional approach,⁽¹⁷⁸⁾ both the validity of a conveyance of an interest in real property and the construction of an instrument of conveyance are governed by law of place of land.⁽¹⁷⁹⁾ But, even in a case applying the law of the place of the land, the supreme court cautioned that the location of land is not the "overriding consideration."⁽¹⁸⁰⁾ The court will consider "whether the policies of each state were in conflict, the location of the property in question, the location of the execution of the agreements, the intent of parties. . .and the place where the deeds themselves were recorded."⁽¹⁸¹⁾ Thus the court applied Mississippi equitable tracing principles but recognized Louisiana community property law in finding a former spouse entitled to a half-interest in mineral rights in Mississippi that were titled in the other spouse's name when the rights had been purchased during the couple's marriage in Louisiana, a community property state.⁽¹⁸²⁾ But the court held that the Mississippi Partnership Act applied to determine partners' property interests in land located in Louisiana when the partnership was formed in Mississippi between Mississippi residents, and the partnership agreement provided that dissolution would be governed by Mississippi law.⁽¹⁸³⁾

Nonresident foreign nationals, under the Mississippi Code, may not acquire more than 320 acres of land for industrial development nor more than five acres for residential purposes.⁽¹⁸⁴⁾ But the Code does not limit the acquisition of personal property and does not apply 1) to citizens of Syria or Lebanon,⁽¹⁸⁵⁾ 2) to former U.S. citizens who became aliens upon marriage, or 3) to aliens who intend to become citizens.⁽¹⁸⁶⁾ Obviously, relevant federal treaties supersede.⁽¹⁸⁷⁾

Personal property conflicts cases are also decided under by balancing approach and specific provisions⁽¹⁸⁸⁾ of the Restatement Second.⁽¹⁸⁹⁾ Accordingly, Mississippi law determines who owns a car purchased and operated in Mississippi.⁽¹⁹⁰⁾ In the absence of a valid choice of law, a spouse's interest in a military retirement pension is determined by the law of the place where the parties were domiciled at the time the interest vested.⁽¹⁹¹⁾ Where the parties moved, different state laws would apply pro rata.⁽¹⁹²⁾ Nevertheless, in distributing property during divorce under principles of equitable distribution, Mississippi courts apply Mississippi property rules in apportioning rights in a pension that vested under the law of another state.⁽¹⁹³⁾

Conflict of laws problems that arise regarding security interests in personal property that is moved from one state to another have been the target of legislative action.⁽¹⁹⁴⁾ The Uniform Commercial Code provides rules regarding perfection of security interests,⁽¹⁹⁵⁾ and motor vehicle statutes provide still more specific rules.⁽¹⁹⁶⁾

3. Marriage

The general rule is that a marriage valid where celebrated is valid everywhere, and a marriage that is invalid where celebrated is invalid everywhere.⁽¹⁹⁷⁾ Although support for the general rule may be questionable in extreme cases,⁽¹⁹⁸⁾ the Mississippi supreme court has followed it and stated that an out-of-state marriage will be recognized as valid unless it violates a statutory prohibition or fundamental policy prohibiting such extraterritorial marriages.⁽¹⁹⁹⁾ Accordingly, a common law marriage celebrated in Georgia that was valid in Georgia is recognized in Mississippi.⁽²⁰⁰⁾

Statutes provide that incestuous marriages are void and that an out-of-state marriage of parties within the prohibited degrees of kinship is also void if the parties celebrated the marriage out of state in an effort to avoid the prohibition with the purpose of returning to the state.⁽²⁰¹⁾

The extraterritorial effects of homosexual marriages recently excited public attention following a 1994 Hawaii Supreme Court decision⁽²⁰²⁾ that was interpreted as paving the way for same-sex marriages in Hawaii.⁽²⁰³⁾ Although the full faith and credit clause does not require other states to recognize such marriages, some scholars argued that such marriages should be valid in other states under a reinterpretation of the full faith and credit clause or under the choice of law rules of the states.⁽²⁰⁴⁾

Congress responded by enacting the so-called Defense of Marriage Act, which permits states to disregard the legal effects of homosexual marriages celebrated in other states.⁽²⁰⁵⁾ Mississippi responded with legislation that specifically provides that out-of-state homosexual marriages will not be recognized even if they are valid where celebrated.⁽²⁰⁶⁾

Certain legal effects or "incidents"⁽²⁰⁷⁾ of out-of-state marriages will be recognized even when the marriage itself is void and accorded no recognition.⁽²⁰⁸⁾ When a foreign marriage violated a fundamental policy and was prohibited, criminalized, and declared "void" by the express language of the Mississippi constitution, the Mississippi Supreme Court nevertheless held that the marriage was valid for the limited purpose of determining the surviving spouse's rights of succession to real property in Mississippi.⁽²⁰⁹⁾

4. Probate and Administration

a. Wills

In a departure from the practice in other jurisdictions,⁽²¹⁰⁾ Mississippi requires foreign wills to be probated in its courts and treats the probate of foreign wills as an original action.⁽²¹¹⁾ Such an action is independent and may be commenced prior to the commencement of probate proceedings in the state of decedent's domicile.⁽²¹²⁾ An authenticated copy of a will admitted to probate in another state or foreign country is admissible as evidence, but the admission of a will to probate in a foreign proceedings is not conclusive,⁽²¹³⁾ and the validity and legal effect of the will is determined by Mississippi law.⁽²¹⁴⁾

Testamentary succession of both real and personal property located in Mississippi is governed by Mississippi law even though the decedent died domiciled in foreign state.⁽²¹⁵⁾ A surviving spouse residing in a foreign state is entitled to a forced share under Mississippi law regardless of the protections afforded by his or her home state.⁽²¹⁶⁾ Dispositions of property likewise are governed by substantive limitations under Mississippi law, such as the mortmain statute.⁽²¹⁷⁾

Because a foreign will must satisfy Mississippi's statute of wills and other requirements in order to be valid in Mississippi,⁽²¹⁸⁾ Mississippi may give effect to a foreign will that is invalid under the law of the testator's domicile. But Mississippi courts may also frustrate a foreign testator's intent by finding that a will, valid in the testator's home state, is invalid under Mississippi law.⁽²¹⁹⁾ Or a foreign will might be found valid when the foreign testator's attempt to revoke complied with foreign rules governing revocation but not Mississippi's.⁽²²⁰⁾ To avoid invalidating foreign wills, most states have adopted borrowing statutes that provide for the recognition of wills that are valid under the law of the place where executed or under the law of the place where the testator was domiciled.⁽²²¹⁾ Mississippi has no such statute.

The full faith and credit clause requires a probate decision from another state to be recognized when the foreign state was the decedent's domicile and to the extent its judgment determined the rights of property located in that foreign state.⁽²²²⁾ The foreign proceedings should also be binding under the full faith and credit clause to the extent they determined personal rights and liabilities of parties who were actually present in the proceedings.⁽²²³⁾ The Mississippi Supreme Court has held that a party who appeared and lost a will contest in another state could not relitigate the validity and effect of the will on personal property located in Mississippi.⁽²²⁴⁾ But rights to real property in Mississippi are not directly affected by probate proceedings in a foreign state.⁽²²⁵⁾

It is paradoxical, that while the Mississippi Supreme Court consistently applies Mississippi law to the validity and legal effect of foreign wills, it holds that the law of the testator's domicile governs matters of construction and interpretation except when it is clear from the will that the testator intended the laws of another jurisdiction to apply.⁽²²⁶⁾ The practice of deferring to foreign rules of construction and interpretation sounds good but makes little sense. It would be better and easier, when the issue is truly a matter of the testator's intent, to apply Mississippi principles of interpretation, as these are the rules best designed to uncover actual intent. The effect of deferring to another jurisdiction's rules of construction (when they differ from the forum's) is to apply a foreign intent-frustrating rule to a matter that Mississippi deems most appropriately resolved by reference to the testator's intent. Such recourse to an intent-frustrating rule makes no sense except in an unusual case where the foreign intent-frustrating rules were intentionally used in drafting.⁽²²⁷⁾

In actual practice, when not distracted by arguments about applying foreign standards of interpretation, the Mississippi Supreme Court has properly resolved issues of construction and intent by applying its own principles of interpretation.⁽²²⁸⁾ This Article suggests that the court's practice makes good sense and proposes that Mississippi law should govern all matters of interpretation unless interpretation is aided by recourse to foreign rules of construction.

b. Intestate succession

Following the traditional rule that the inheritance of land is governed by the law of the place where the land is located,⁽²²⁹⁾229.See generally Weems, supra note ___, § § 1-2 at 3. Mississippi's decision to follow the Restatement Second does not change this rule, because it is retained by the Restatement Second:

Intestate Succession to Land

(1) The devolution of interest in land upon the death of the owner intestate is determined by the law that would be applied by the courts of the situs.

(2) These courts would usually apply their own local law in determining such questions.

Restatement (Second) of Conflict of Laws § 236. Accord Restatement [First] of Conflict of Laws § 245 ("The law of the state where the land is determines its devolution upon the death of the owner intestate."), J. Story, supra note ___, § 483 at 823 ("The descent and heirship of real estate is exclusively governed by the law of the country, within which it is actually situate.").⁽²³⁰⁾ Mississippi courts apply Mississippi law to the intestate succession of land located in the state.⁽²³¹⁾

Since 1857 by statute Mississippi has also applied Mississippi rules of intestate succession to personal property located in Mississippi.⁽²³²⁾ Mississippi's treatment of personal property departs from the common-law rule, followed in every other state,⁽²³³⁾ that descent and distribution of personal property are governed by the decedent's domicile at death.⁽²³⁴⁾ An original action must be brought in Mississippi to determine the ownership of personal property located in the state.⁽²³⁵⁾ Cases under the statute have defined personal property broadly to include debts owed by sources located in Mississippi,⁽²³⁶⁾ shares in Mississippi corporations,⁽²³⁷⁾ and deposits in Mississippi banks.⁽²³⁸⁾

Application of forum law to all property located in state seems like one of the least objectionable choice-of-law rules. But it produces some of the greatest dilemmas in practice. A debtor deals with foreign administrators at his or her peril, for the payment of a debt construed as property governed by Mississippi law to a foreign administrator provides no defense in a subsequent claim brought in Mississippi by the statutory beneficiaries.⁽²³⁹⁾ Federal interpleader may provide the only remedy.⁽²⁴⁰⁾ An estate with assets in more than one state may be subjected to irreconcilable conflicts regarding the distribution of property; and Mississippi courts themselves may find it hard to decide whether, in disposing of estate assets it should consider the disposition of out-of-state property for purposes of calculating proper shares under Mississippi's rules of descent and distribution.⁽²⁴¹⁾ Conflicting rules may also apply to the order of distribution or to priorities of property to be sold to satisfy tax or other obligations.⁽²⁴²⁾

5. Torts

The first Mississippi case in which the Restatement Second "most significant relationship" or "center of gravity" approach made a difference was a tort case, Mitchell v. Craft.⁽²⁴³⁾ And the Restatement Second approach probably continues to make the biggest difference in torts cases. The basic rule in the Restatement Second is misleadingly simple: "The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, as the most significant relationship to the occurrence and the parties under the principles stated in § 6."⁽²⁴⁴⁾ Under this rule, the laws of different states may apply to different issues in the same case.⁽²⁴⁵⁾

The basic rule is not only extremely general,⁽²⁴⁶⁾ it loses its rule-like character by directing consideration of all the conflicting policies at issue as well as of the underlying purposes of the conflict of laws.⁽²⁴⁷⁾ The Restatement Second was drafted during a period of great optimism in balancing tests when specific laws were widely viewed as accommodations of valid conflicting interests. The drafters of the Restatement Second envisaged the choice-of-law in torts as a comparable judicial balancing of public and private interests.⁽²⁴⁸⁾

"Contacts" to be considered in making the choice-of-law decision in torts cases are the places associated with the parties and with the elements of the tort: the place of the harm; the place of the conduct causing the harm; the place of the domicile, residence, incorporation, and place of business of the parties; and the central place of the parties' relationship.⁽²⁴⁹⁾ Domicile or residence is determined as of the time of the cause of action, so subsequent changes in residence should not affect application of choice-of-law.⁽²⁵⁰⁾ For businesses, the principal place of business is more important than place of incorporation,⁽²⁵¹⁾ and the fact that a corporation is qualified to do business in Mississippi and has done business in the state unrelated to the issues in litigation "fades into insignificance" in the choice-of-law determination.⁽²⁵²⁾

Most issues of liability, vicarious liability, defenses, immunities, and damages are determined by the law selected by the balancing approach,⁽²⁵³⁾ as are claims for contribution and indemnification.⁽²⁵⁴⁾ The Restatement provides more specific rules to guide the judicial choice. For example, in personal injury actions, the law of the place of injury applies unless some other state has a more significant relationship to the occurrence and the parties.⁽²⁵⁵⁾ In wrongful death actions, the law of place of death applies unless some other state has more significant relationship.⁽²⁵⁶⁾ In actions for injury to land or personal property, the law of place of the injury applies unless some other state has more significant relationship.⁽²⁵⁷⁾ In actions for libel and slander, the law of place where the defamatory statements were communicated applies unless some other state has more significant relationship.⁽²⁵⁸⁾ Actions for invasion of privacy are normally governed by the law of the place where the invasion occurred.⁽²⁵⁹⁾ The law of the place of wrongful conduct normally applies in intentional torts arising from interference with marriage,⁽²⁶⁰⁾ alienation of affections,⁽²⁶¹⁾ abuse of process and malicious prosecution,⁽²⁶²⁾ and in fraud cases when the detrimental reliance occurs in the same state.⁽²⁶³⁾

Though they appear to establish presumptions, these more specific rules require a balancing of competing interests, too, as well as judicial consideration of the underlying purposes of the laws.⁽²⁶⁴⁾ The Mississippi Supreme Court has never placed great weight on the specific rules as tie-breakers in hard choice-of-law cases, though federal cases (supposedly applying Mississippi law) have given decisive presumptive effect to the rules.⁽²⁶⁵⁾ In Mitchell the Mississippi Supreme Court stated: "a case is to be governed by the law of the forum unless it is expressly shown that a different law applies."⁽²⁶⁶⁾ But in the same opinion, the court suggested: "Ordinarily, the local law of the state where the injury occurred will determine the rights and liabilities of the parties, 'unless with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied.'"⁽²⁶⁷⁾ But Mitchell rightly declined to apply the rule as a presumption when to do so failed to promote Mississippi policies.

The Mississippi Supreme Court has held that Mississippi law determines who may recover in an action for the wrongful death of a Mississippi resident whose estate is administered in Mississippi.⁽²⁶⁸⁾ So, too, Mississippi law applies in actions for the intentional torts of intentional interference with contract and insurance bad faith when the tortious conduct occurs in Mississippi even if the parties are nonresidents.⁽²⁶⁹⁾ On the other hand, the Mississippi actionable word statute does not apply to create a cause of action when the words spoken out of state were not wrongful where spoken.⁽²⁷⁰⁾ And Mississippi applies the rules of the road of the place of tort in car accident cases.⁽²⁷¹⁾

Although it has not differentiated explicitly between rules that regulate conduct and those that merely shift losses, the Mississippi Supreme Court deciding cases involving the effect of loss-allocating rules in out-of-state accidents has given more weight to the parties' residence when all reside in the same state than to the place of the accident or tortious conduct.⁽²⁷²⁾ Hence Mississippi's comparative negligence statute applies to out-of-state accidents when all the parties are from Mississippi.⁽²⁷³⁾ So, too, the Mississippi law rather than foreign guest statutes applies in cases between Mississippi residents involved in out-of-state car accidents.⁽²⁷⁴⁾ Such results make good sense, for the residence of the parties is an important indicator of the strength of the state laws in conflict. For example, when parties are from Mississippi, the purposes of the foreign state's guest statute would probably not be served by applying it in litigation in Mississippi involving Mississippi residents.⁽²⁷⁵⁾ In contrast, the compensatory purposes behind Mississippi's tort law would be frustrated unnecessarily by allowing the defense.⁽²⁷⁶⁾

The parties' domicile is given less weight, however, when the parties are actually living in another state and the center of their activity and relationship is in that other state. Thus a common law tort claim was barred under Louisiana law when the employee, though a resident citizen of Mississippi, was living in Louisiana at the time of his employment, was hired in Louisiana, worked exclusively in Louisiana, was injured and treated in Louisiana. The defendant employer was incorporated in Mississippi but was doing business in Louisiana as well as Mississippi and paid insurance premiums in Louisiana.⁽²⁷⁷⁾

Normally Mississippi law should apply to cases arising in Mississippi.⁽²⁷⁸⁾ Traditionally, such cases would not have been considered to require a choice of law, and even under the Restatement Second, the law of the place of the tort usually applies.⁽²⁷⁹⁾ Mississippi has powerful state interests in applying its law to control the consequences of acts committed within its territorial jurisdiction and to assure that its laws apply equally to events caused in the state regardless of the residence of the actors who caused the events.⁽²⁸⁰⁾

It must be conceded that inapposite language in one supreme court opinion seems to state that the Alabama guest statute should apply to a claim by an Alabama resident against an Alabama resident stemming from a truck accident in Mississippi.⁽²⁸¹⁾ But the statement in that opinion (repeated out of context in the headnote) is dictum at best, because the issue presented to the court was not the application of the Alabama guest statute but rather the driver's employer's liability for its acts performed in Alabama. Despite the dictum and headnote, the court actually applied Mississippi law not the Alabama guest statute to the claims against the Alabama driver.⁽²⁸²⁾ The opinion offers no complete explanation for why Alabama law should apply to the separate claims against the driver's employer, but the facts disclose that the passenger connived with the driver to obtain a ride in violation of the employer's policy. The important point is that the opinion does not suggest that Mississippi has no policy in favor of compensating nonresidents injured in the state. On the contrary, Mississippi policy favors application of Mississippi law to in-state accidents, including those involving foreign residents.⁽²⁸³⁾ And there are reasons to question whether applying Mississippi law in such cases conflicts with the policies of the residents' home state.⁽²⁸⁴⁾

Courts have struggled with cases arising out of state where the parties are from different states. For example, the Fifth Circuit (applying Mississippi choice-of-law rules) held that Tennessee law barred products liability claims by a Mississippi resident and his Mississippi employer against a Pennsylvania manufacturer for injuries sustained by the employee during temporary work in Tennessee.⁽²⁸⁵⁾ In a medical malpractice claim between foreign residents in a foreign state, a federal trial court (applying Mississippi choice-of-law rules) held that Mississippi comparative negligence applied but that recoverable damages were reduced by foreign limits on noneconomic damages.⁽²⁸⁶⁾

There is no better illustration of the complex analyses of interests and contacts required by the Restatement Second than Justice Robertson's opinion in McDaniel v. Ritter, a wrongful death action brought by the survivors and personal representatives of a passenger (Ritter) killed in a plain crash.⁽²⁸⁷⁾ Ritter was a Mississippi resident as were his surviving spouse and heirs. He was employed by a Mississippi corporation having its principal place of business in Tennessee.⁽²⁸⁸⁾ The pilot (Speaks) was a Tennessee resident but was a native of Mississippi engaged in extensive property and business activities in Mississippi.⁽²⁸⁹⁾ Ritter and Speaks were sales representatives covering a multistate territory for various firms (some owned by Speaks) with their base of operations in Memphis.⁽²⁹⁰⁾ Both were pilots but Speaks was far more experienced.⁽²⁹¹⁾

One day Speaks and Ritter rented a small plane in Memphis and flew to Springfield, Missouri on business. Later that day, after completing their business, they planned to fly to a nearby town in Missouri for a social visit to Speaks's in-laws. Speaks failed to get a full weather briefing, and the plane experienced icing and crashed in Missouri.⁽²⁹²⁾

Ritter's survivors asserted claims against Speaks's estate for negligence and against various owners and operators of the plane on theories of strict vicarious liability. Defenses included: assumption of risk, barring of tort recovery by Tennessee workers compensation law, and lack of vicarious liability under Tennessee law.

The trial court initially viewed the case as one of pure assumption of risk due to Ritter's own experience as a pilot. It refused to apply Mississippi comparative negligence and submitted the issue of assumption of risk to the jury, which returned a verdict for the defendants.⁽²⁹³⁾ The trial court subsequently granted a motion for a new trial, concluding that it had erred, and the Supreme Court agreed that assumption of risk was unavailable. To reach this conclusion it was unnecessary to make a choice-of-law determination because the laws of Tennessee, Mississippi, and Missouri were not in conflict on the issue of assumption of risk.⁽²⁹⁴⁾ Justice Robertson hinted, nevertheless, that Missouri law, might apply to this issue; employing a sort of renvoi, he reasoned that Tennessee law applied under Mississippi's Restatement Second approach and that Tennessee law, which retained the rule of lex loci delictus, would itself apply Missouri law.⁽²⁹⁵⁾

But the supreme court nonetheless concluded that the trial court erred in applying Mississippi law to all the legal issues in the case. Looking at the contacts, Justice Robertson concluded on the contrary that Tennessee had the most significant relationship with the occurrence generally and that Mississippi law could not govern all issues.⁽²⁹⁶⁾ He analyzed each issue separately, holding that Tennessee law applied and provided complete defenses to claims based on vicarious liability against the various owner-operator defendants,⁽²⁹⁷⁾ that Tennessee law applied to the issue of the exclusivity of workers compensation, but that Tennessee law did not bar a tort claim.⁽²⁹⁸⁾

Despite the fact that Tennessee law applied to most of the issues in the case, the court held that Mississippi comparative negligence should apply to the tort claim. First, Justice Robertson emphasized the strength of Mississippi's strong policy preference for comparative negligence.⁽²⁹⁹⁾ Second, he questioned the strength of Tennessee's policies behind its doctrine of contributory negligence.⁽³⁰⁰⁾ Third, he cited the line of Mississippi cases applying comparative negligence in out-of-state accidents.⁽³⁰¹⁾ Fourth, he observed that comparative negligence was "demonstrably superior" to contributory negligence on objective grounds of both civil justice and economic efficiency.⁽³⁰²⁾ Fifth, he pointed out that Missouri also adopted comparative negligence and that Missouri law would normally apply as the state where fault and injury occurred, absent a more significant relationship with another state.⁽³⁰³⁾ For all these reasons, but without specifically relying on the Mississippi residence of Ritter or his survivors, Justice Robertson concluded that Mississippi comparative negligence must apply.

Justice Robertson's analysis demonstrates the importance of case-specific consideration of contacts and issue-by-issue evaluation of state policies. It also reveals the difficulty of

applying the Restatement Second approach and the uncertainty that remains⁽³⁰⁴⁾ in many areas of torts⁽³⁰⁵⁾ despite the judicial attention lavished on choice-of-law problems.⁽³⁰⁶⁾

6. Contracts

Frequent references to Mississippi's choice-of-law approach as a "center of gravity" or "most substantial relationship" approach may give rise to the misconception that choice-of-law in contracts is governed by the same sort of judicial balancing made in torts cases. But the treatment of contracts is different.⁽³⁰⁷⁾ First, choice-of-law issues that arise in contracts within the Mississippi version of the Uniform Commercial Code are governed by statute, not by the judicially adopted rules of the Restatement Second. Second, both the Uniform Commercial Code and the Restatement Second incorporate a strong preference for applying the law chosen by the parties. Accordingly, contracts choice-of-law cases are resolved by judicial balancing only for contracts that are neither governed by the Uniform Commercial Code nor controlled by a valid choice-of-law made by the contracting parties.

a. Uniform Commercial Code

The Uniform Commercial Code allows parties to make a choice of law of any state or country that has a "reasonable relation" to transaction.⁽³⁰⁸⁾ If the parties make no choice, the Uniform Commercial Code applies "to transactions bearing an appropriate relation to this state."⁽³⁰⁹⁾ Regardless of any choice of law made by the parties, the statute provides that Mississippi law governs disclaimers of implied warranties of merchantability or fitness, limitations of remedies, privity of contract--matters relating to product liability.⁽³¹⁰⁾ The Code also contains specific provisions that determine choice-of-law, and limit any choice to the contrary, in certain contexts.⁽³¹¹⁾

b. General contracts

In the old days choice-of-law rules for contracts looked to the place of execution or performance.⁽³¹²⁾ The reason for doing so was not clear: sometimes courts reasoned that the territorial law should govern rights created (or duties to be performed) in the territory; but sometimes they assumed territorial law should apply because the contracting parties wanted or expected it to.

Today in Mississippi substantive legal issues in contract are normally determined according to the law chosen by the parties.⁽³¹³⁾ To be sure, the choice itself must be a valid contract under Mississippi law.⁽³¹⁴⁾ The preference for validating parties' choice-of-law in contracts is consistent with the approach of the Restatement Second.⁽³¹⁵⁾ Under the Restatement Second, the parties' choice-of-law is automatically valid on substantive matters that they could have made a matter of binding contract.⁽³¹⁶⁾ Even on matters they could not have resolved by contract, their choice-of-law will apply if there is a reason for the choice and applying the chosen law does not violate a fundamental policy of the state with the most significant relationship to the transaction and parties.⁽³¹⁷⁾

Because of the strong judicial preference for validating choice-of-law agreements, it may be sound advice routinely to include choice-of-law provisions in contracts.⁽³¹⁸⁾ At the time of contracting, parties are not usually in a position to make an informed determination about whether a particular jurisdiction's law will be favorable. Not only do the parties at the time of contracting assume there will be future compliance with the contract, they do not foresee the specific legal problem that will present the need for a choice-of-law or they would address the issue directly in the contract. A choice-of-law agreement is therefore both wise and fair because the risk of an unfavorable choice falls equally on all parties while all parties benefit from the reduction of costs incurred litigating the choice-of-law issue. Lawyers drafting choice-of-law clauses should be warned, however, that a contractual choice of foreign law may be a factor that helps establish personal jurisdiction in the foreign state's courts in a dispute arising from the contract.⁽³¹⁹⁾

When there is no valid choice of law, the contract will be governed by the law of the state with the most significant relationship to the transaction and the parties.⁽³²⁰⁾ "Contacts" to

be considered include the place of contracting, the place of negotiation, the place of performance, the location of the subject matter of the contract, and the residences and places of business of the parties.⁽³²¹⁾

The Restatement Second provides more specific rules for certain situations and for certain kinds of contracts. When negotiation and performance are in the same state, that state's law normally applies.⁽³²²⁾ Contracts for conveyance of land are normally governed by the law of the place where the land is,⁽³²³⁾ as are any contractual duties imposed by a deed.⁽³²⁴⁾ Contracts for sale of goods (not otherwise covered by the Uniform Commercial Code) are normally governed by the law of the place of delivery,⁽³²⁵⁾ loans of money by the law of the place of repayment.⁽³²⁶⁾ Contracts for services are normally governed by the law of the place where the services are to be performed.⁽³²⁷⁾ Insurance contracts are governed by the law of the place where the insured risk is located.⁽³²⁸⁾ Contracts for the transportation of people or things are normally governed by the law of the place of departure.⁽³²⁹⁾

Mississippi cases have held that a contract is governed by the law of the parties' residence and place of contract (when they are the same place),⁽³³⁰⁾ that an insurance agreement is governed by the law of the principal location of the risk,⁽³³¹⁾ that a land sale contract is governed by the place of the land when the contracts were also executed and signed in that state,⁽³³²⁾ and that a promissory note is governed by the law of the place where it was executed and made payable.⁽³³³⁾ In applying the law of the place of the contract in some cases, the Mississippi Supreme Court has justified its choice by the assumption that the parties intended to be governed by that law in the absence of a choice-of-law agreement.⁽³³⁴⁾

Taking this reasoning to its extreme, all choice-of-law issues in a contract dispute might be reduced to a matter of express or implied intent, and parties might attempt to introduce evidence as to their intent about governing law just as they do for other disputes about intent. This would be inappropriate. In the absence of an actual agreement, the parties' had neither an intent with respect to the legal problem on which the laws of two jurisdictions conflict nor an intent with respect to which jurisdiction's law should govern. Accordingly, choice-of-law (in the absence of an agreement) should be made by the court without reference to the parties' intent.

For matters of construction of contract language, the Restatement Second provides a complex multi-level set of rules⁽³³⁵⁾ that have not yet been found useful or applied in any Mississippi decision.⁽³³⁶⁾ The Mississippi Supreme Court has stated broadly that "the law governing construction or interpretation of a contract in order to enforce the agreement is substantive for conflict of law purposes."⁽³³⁷⁾ As was suggested above with respect to the interpretation of conveyances and wills,⁽³³⁸⁾ the practice of deferring to foreign rules of interpretation in matters of intent makes little sense. The rules relied on often simply restate common sense principles well known to Mississippi courts.⁽³³⁹⁾ The truth is, courts already apply their own law to interpretation, ⁽³⁴⁰⁾ and it would be better and easier openly to apply Mississippi principles of construction and interpretation to matters of intent, as these are the ones best designed to uncover actual intent. Recourse to foreign rules of interpretation makes sense only when the rules were deliberately used in drafting.

c. Forum selection clauses

Federal courts applying federal law in cases within their federal subject-matter jurisdiction will enforce mandatory⁽³⁴¹⁾ forum selection clauses unless they are unreasonable.⁽³⁴²⁾ In cases within the federal courts' diversity-of-citizenship jurisdiction, circuits are split as to whether state law or federal law determines the validity of forum selection clauses;⁽³⁴³⁾ the Fifth Circuit has held that federal principles govern and that forum selection clauses are enforceable.⁽³⁴⁴⁾ Motions to transfer within the federal system give great weight to such clauses, notwithstanding local policies against forum selection.⁽³⁴⁵⁾ Nevertheless, courts will construe an ambiguous forum selection agreement as permissive rather than mandatory.⁽³⁴⁶⁾

Mississippi state courts have not yet decided whether to enforce mandatory forum selection clauses.⁽³⁴⁷⁾ Other states are divided: some enforce the clauses when reasonable, but others refuse to enforce them because they consider the effect, ousting the court of otherwise proper jurisdiction, to be offensive to public policy.⁽³⁴⁸⁾

There are some good arguments for enforcing forum selection agreements. Doing so gives effect to the contractual expectations of the parties and helps reduce the court's caseload. But there are also compelling reasons against enforcing such agreements. Because the agreements seek to oust courts of otherwise proper jurisdiction and to deprive the contracting parties of a remedy, forum selection clauses were traditionally void in every jurisdiction as violating public policy.⁽³⁴⁹⁾ It is uncertain whether Mississippi will join those jurisdictions that now enforce the clauses, for other Mississippi state laws reveal particularly powerful policies against permitting parties to oust themselves of judicial remedy by agreement. For example, unlike most other states, Mississippi does not permit parties to shorten the statute of limitations by contract;⁽³⁵⁰⁾ and parties may not by an otherwise valid choice-of-law provision reduce the remedies available for breach of implied warranties of merchantability or fitness.⁽³⁵¹⁾ While parties' choice-of-law agreements are respected by Mississippi courts,⁽³⁵²⁾ such agreements are effective only for "substantive" issues, and Mississippi law always governs the remedy.⁽³⁵³⁾ Nor will Mississippi courts grant a dismissal on grounds of forum non conveniens when there is no other forum available.⁽³⁵⁴⁾

Furthermore, federal experiments with enforcing forum selection clauses have not been entirely satisfactory. Though such clauses are supposedly enforced only when reasonable, even the most blatant boilerplate clauses have become routinely enforced⁽³⁵⁵⁾ except when the contract was the result of fraud or overreaching or enforcement would deprive a party of a day in court.⁽³⁵⁶⁾ Commentators have criticized the unbridled enforcement of mandatory forum selection clauses.⁽³⁵⁷⁾

Mississippi's enforcement of choice-of-law agreements does not provide authority for enforcing forum-selection agreements. Forum-selection clauses are distinguishable from choice-of-law clauses. The risks of an adverse choice-of-law selection fall equally on all parties, and all parties share the benefit of reduced costs that flow from the enforcement of the clauses.⁽³⁵⁸⁾ In striking contrast, forum selection clauses overwhelmingly favor corporate defendants as a group. Only corporate parties who engage legal advice in drafting original contract documentation have the foresight to insert boilerplate language identifying a forum as the exclusive site of litigation. While such parties may have legitimate interests in centralizing litigation,⁽³⁵⁹⁾ one suspects the motives for forum selection clauses are often less objective. These defendants usually have more or less fixed litigation costs regardless of the forum, but their selection of a forum inconvenient for large numbers of potential plaintiffs drastically raises the plaintiffs' costs, thus discouraging both merited and groundless claims and artificially reducing the settlement value of valid claims.⁽³⁶⁰⁾

Forum selection agreements, when reasonable, present fewer problems in commercial litigation or in cases involving corporate parties who were represented by lawyers in negotiations and who, being required to retain counsel in litigation, have more portable cases. But forum selection agreements involving individuals raise significant policy concerns about access to justice and fairness⁽³⁶¹⁾ that may lead Mississippi courts to refuse to enforce forum selection clauses in such cases.


C. The Public Policy Exception

Even if a legal issue is determined to be substantive for purposes of conflict of laws, and even if Mississippi's choice-of-law rules determine that foreign law should apply to the issue, the Mississippi courts will nevertheless refuse to apply the foreign law if it is "offensive to the deeply ingrained or strongly felt public policy of the state."⁽³⁶²⁾ Justice Robertson expressed the rule:

[W]e recognize that there will be cases where, applying the center of gravity doctrine, we might conclude in the first instance that the law of another state should be applied. Where that law is contrary to the deeply ingrained and strongly felt public policy of this state, however, we have recognized that we may nevertheless apply and enforce this state's positive substantive law.⁽³⁶³⁾
Obviously, not every foreign law inconsistent with a Mississippi statute or rule of decision will be considered offensive to Mississippi public policy or else every case involving conflicts of law would result in the application of Mississippi law.

Public policy provides an exception to the normal operation of choice-of-law rules, and the sort of foreign law that qualifies for the exception has traditionally been defined narrowly.⁽³⁶⁴⁾ Sometimes it may be hard to distinguish a matter that is governed by Mississippi law because it is deemed procedural from matters that are governed by Mississippi law because the foreign law is deemed offensive to public policy, and the two areas may overlap. For example, the Mississippi Supreme Court applied Mississippi spousal and parental immunity and refused to recognize tort claims brought against the estate of a deceased husband and father. Even though the parties were from Louisiana, which apparently permitted such claims, the court held that Mississippi law governed for two reasons--first, because the Louisiana law was contrast to Mississippi public policy, and second, because forum law governed all matters of procedure.⁽³⁶⁵⁾

The First Restatement allowed a forum to disregard its normal territorial rules when its enforcement of a foreign cause of action would offend its public policy.⁽³⁶⁶⁾ The Restatement Second includes no separate public policy exception but rather directs courts in making choice-of-law determinations to consider factors that include "the relevant policies of the forum."⁽³⁶⁷⁾ Because of inconsistencies in applying the public policy exception, some scholars tout the Restatement Second as an improvement.⁽³⁶⁸⁾

But Mississippi courts have continued to refer to public policy as an "exception" to their choice-of-law rules at the same time that they have fashioned a flexible approach to the exception that recognizes that Mississippi policy interests are stronger in some cases than others.⁽³⁶⁹⁾ Nevertheless, even when Mississippi law reflects important public policy, the policy is not necessarily so strong that it prevents application of foreign law in a case where the parties are all nonresidents. For example, in holding that Tennessee law disallowing stacking should apply in an action for uninsured motorist coverage by Tennessee residents against their insurer arising from an accident that occurred in Mississippi, Justice Roberts paid special attention to the expectations of parties under the contract and to the fact that the case concerned a contract executed in Tennessee between a Tennessee insured and a non-Mississippi insurer.⁽³⁷⁰⁾

So, too, the Supreme Court, allowed a defense under an "owned vehicle" exclusion clause⁽³⁷¹⁾ that was valid under the law of Nebraska even though it violated strong Mississippi policies against such exclusions, emphasizing that the contract was made in Nebraska between a Nebraska insured and a non-Mississippi insurer.⁽³⁷²⁾

Although the residence of parties was obviously important to the court's reasoning in these two cases, other factors also may have justified applying foreign law notwithstanding strong Mississippi policies to the contrary. The cases involved defenses raised under foreign law rather than foreign causes of action, and they involved foreign contracts.⁽³⁷³⁾

Although the courts discount the force of public policy when Mississippi's contacts weak, strong Mississippi policy concerns can also overcome contacts that otherwise tip the balance in favor of applying foreign law. For example, in McDaniel v. Ritter, Justice Roberston held that Mississippi comparative negligence must apply notwithstanding the prevalence of Tennessee contacts as to other issues.⁽³⁷⁴⁾ Justice Robertson's opinion illustrates the current ambiguity of Mississippi law. On the one hand, his opinion may be interpreted to mean (with special reference to the policies behind comparative negligence) that Mississippi has the most significant relationship with respect to that issue. On the other hand, it could be interpreted to mean (despite the fact that Tennessee had the most significant relationship) that Mississippi comparative negligence applies because Tennessee's law of contributory negligence offended Mississippi public policy. In a subsequent opinion, Justice Robertson suggested that the opinion was grounded on public policy grounds.⁽³⁷⁵⁾

Whether public policy is a true exception to choice-of-law rules or rather a factor to take into account in the balancing required by the Restatement Second is not just an academic question. The theoretical status of the public policy exception may affect the outcome in cases. For example, if public policy is a true exception, then Mississippi's comparative negligence law might properly apply in cases between nonresidents whose home law is contributory negligence.⁽³⁷⁶⁾ But, if public policy is only a consideration, then courts might apply contributory negligence in such cases because the Mississippi state policy behind comparative negligence may be reduced or counterbalanced by other considerations.

D. Renvoi

When Mississippi's choice-of-law rules determine that some other state's law governs the case, a question may arise as to whether the court should look only at that other state's local law or whether it should look at its whole law, including its conflicts-of-law law. The overwhelming weight of authority suggests that normally the local law of the other state should be applied.⁽³⁷⁷⁾ This is the official position of the Restatement Second,⁽³⁷⁸⁾ and the practice of federal courts applying Mississippi's choice-of-law rules.⁽³⁷⁹⁾ Nevertheless, the fact that the foreign state identified by Mississippi's choice-of-law rules would not apply its own law has been identified by the Mississippi Supreme Court as indicating the foreign state's lack of strong interest in having its law apply.⁽³⁸⁰⁾


V. Choice-of-Law Rules in Federal Court

A. Diversity Jurisdiction

Federal courts sitting in Mississippi must apply Mississippi choice-of-law rules in diversity cases, regardless of whether Mississippi characterizes the conflicts issue as substantive or procedural.⁽³⁸¹⁾ In theory, this means federal courts should decide a choice-of-law problem exactly as a Mississippi state court would. In practice, however, federal courts have been understandably reluctant to predict changes in Mississippi law or to assert Mississippi state policies in the absence of explicit state authority, and they have, consequently, applied Mississippi choice-of-law rules more conservatively than the state courts.⁽³⁸²⁾ Federal courts have relied extensively on tie-breaking presumptions,⁽³⁸³⁾ which has the practical effect in most cases of restoring the first Restatement rules. Federal courts have also relied extensively on prior federal decisions interpreting Mississippi choice-of-law rules, though the Mississippi Supreme Court has given such decisions no comparable weight.

Therefore, notwithstanding the policy behind the Erie doctrine of preventing forum shopping between state and federal courts,⁽³⁸⁴⁾ parties with a choice-of-law case that is resolved favorably either by a prior decision from the Fifth Circuit applying Mississippi law or by one of the Restatement Second's tie-breaking rules should seek a federal forum; conversely, parties that will have favorable law chosen only by judicial evaluation of policies or by a judicial determination that the law is qualitatively preferable should avoid a federal forum. It is to be hoped, however, that this advice will become unnecessary as federal courts recognize that their practice has frustrated the uniform administration of choice-of-law law in Mississippi.⁽³⁸⁵⁾

When a valid federal statute or Federal Rule of Civil Procedure or Evidence provides a uniform rule, it applies. For this reason federal courts not only may enforce forum selection clauses in cases within admiralty jurisdiction but may do so in granting transfers between federal districts authorized by federal statute even though such agreements may not be enforceable under Mississippi state law.⁽³⁸⁶⁾ On the other hand, many federal statutes and rules specifically incorporate state law.⁽³⁸⁷⁾

B. Federal Torts Claim Act

In claims brought against the United States government in federal court under the Federal Torts Claim Act,⁽³⁸⁸⁾ the court will apply the choice-of-law rules of the place where the government's act or omission occurred.⁽³⁸⁹⁾ When the act or omission occurred in Mississippi, Mississippi choice-of-law rules will govern a wrongful death action even when the death occurs in another state.⁽³⁹⁰⁾

C. Admiralty Cases

Cases within federal admiralty jurisdiction are governed by federal choice-of-law rules that consider: 1) place of the wrongful act; 2) law of the flag, 3) the allegiance or domicile of the injured worker, 4) allegiance of the defendant shipowner, 5) place of the contract, 6) inaccessibility of the foreign forum, 7) law of the forum, and 8) the shipowner's base of operations.⁽³⁹¹⁾ The judicial evaluation of these factors is similar to the Restatement Second approach. They are not counted mechanically, but "the significance of each factor must be considered within the particular context of the claim and the national interest that might be served by the application of United States law."⁽³⁹²⁾


VI. Constitutional Limitations

A. Requirement that State Must Have Significant Contact For its Law to Apply

Mississippi courts routinely apply Mississippi law despite prevalent contacts in other states when an issue is procedural,⁽³⁹³⁾ when strong Mississippi policies favor application of forum law,⁽³⁹⁴⁾ and when statutes so require.⁽³⁹⁵⁾ Yet it may constitute a taking in violation of a party's due process rights⁽³⁹⁶⁾ for a court to apply Mississippi law in a case in which there are no contacts with Mississippi (other than jurisdiction) and in which Mississippi has no interest in applying its law.⁽³⁹⁷⁾

Earlier this century, the Supreme Court held that substantive due process prevented the disregard of rights that had vested under traditional territorial choice-of-law principles⁽³⁹⁸⁾ and that the full faith and credit clause⁽³⁹⁹⁾ prohibited a state from applying its law to a transaction in disregard of the law of another state when the underlying transaction had nothing to do with the forum state.⁽⁴⁰⁰⁾ But by 1939 it was clear that due process did not prevent more than one state's law being applied to a case with multi-state elements.⁽⁴⁰¹⁾ A state's law could be constitutionally applied when events giving rise to the cause of action occurred in the state.⁽⁴⁰²⁾ And the Court subsequently held neither due process nor full faith and credit prevented application of forum law in a case where the forum state had an interest.⁽⁴⁰³⁾

The present constitutional limits on state choice-of-law are set forth in Allstate Insurance Co. v. Hague.⁽⁴⁰⁴⁾ The Court reviewed the history of decisions imposing limits on choice-of-law under both the due process clause and full faith and credit clause and came up with a single test: "[F]or a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interest, such that choice of its law is neither arbitrary nor fundamentally unfair."⁽⁴⁰⁵⁾ Students familiar with the evolution of the Supreme Court's construction of the "minimum contacts" standard in International Shoe⁽⁴⁰⁶⁾ have pointed out that the rhetorical formulation in Hague might similarly be construed to require a two-part analysis: first, a finding that the state have a significant contact creating state interest; second, a finding that application of its law is not arbitrary or unfair.

While minimum contacts sufficient for personal jurisdiction are not enough to permit a court to apply its law to a case, the plurality in Hague's reasoned that such contacts together with the fact that the plaintiff established residency in the state after the cause of action and the fact that the decedent had been employed in the state added up to a significant aggregation of contacts.⁽⁴⁰⁷⁾ The dissent agreed with Hague's significant contact standard but disagreed whether it was satisfied under the facts in the case.⁽⁴⁰⁸⁾

The Court subsequently applied the significant contact standard to hold that Kansas courts were constitutionally prohibited from applying Kansas equity law to fix the interest rate governing all claims in a class action for back payment of interest for mineral royalties where less than 1000 of the 28,100 class members resided in Kansas and only one quarter of one percent of the gas leases were in Kansas.⁽⁴⁰⁹⁾ Neither the defendant's presence in the state, its minimum contacts with the forum unrelated to the issues in the case, nor the forum's procedural interest in the convenience of applying its own laws are enough (by themselves) to make constitutional the application of its law.⁽⁴¹⁰⁾

Even when a state lacks sufficient contacts creating state interests to permit it constitutionally to apply its substantive law in a case, a state may still apply its own statute of limitations.⁽⁴¹¹⁾ Justice Scalia explained that full faith and credit does not prevent a state from applying its own procedural rules, and found that statutes of limitations are procedural because "the historical record shows conclusively. . . that the society which adopted the Constitution did not regard statutes of limitations as substantive provisions. . .but rather as procedural restrictions. . ."⁽⁴¹²⁾ He likewise found that application of the forum's statute of limitations did not violate due process because of the longstanding historical practice of courts applying forum statutes of limitations.⁽⁴¹³⁾ While relying principally on the distinction between substance and procedure, Justice Scalia also noted that states had legitimate interests in regulating their courts' dockets and that no party could be surprised "by the application to it of a rule that is as old as the Republic."⁽⁴¹⁴⁾ Three justices concurred in holding that a court was free to apply its own limitations period but did so by applying the significant contact standard, finding that pendency of litigation in the forum together with the forum's interest in controlling access to its courts created a state interest making application of forum law constitutional.⁽⁴¹⁵⁾

According to Justice Scalia's reasoning, Mississippi's practice of applying forum law to all matters of procedure and remedy will be constitutional--at least as long as Mississippi's characterization of an issue as procedural comports with longstanding historical practices. It would be reassuring to know that every application of forum procedural law is constitutional. Unfortunately, it is not yet certain that Justice Scalia's broad rule states the law of the land.⁽⁴¹⁶⁾ First, it is not clear that Justice Scalia's opinion commanded the support of the majority.⁽⁴¹⁷⁾ Second, the Court's holding concerned statutes of limitations, for which there was considerable prior precedent, and the broad language about procedure is ultimately dictum that may not be followed in other cases.⁽⁴¹⁸⁾ Third, the reasoning of the concurring opinion together with Justice Scalia's reference to considerations such as the forum's interest in regulating its docket and the lack of surprise in applying forum statutes of limitations demonstrate that such statutes presented the Court with a relatively easy constitutional issue--one in which no important policies weighed against application of forum limitations periods. Other issues characterized as procedural like immunities or presumptions are more problematic. And there is reason to doubt that forum law may invariably apply to at least one issue characterized as procedural--the division between judge and jury.⁽⁴¹⁹⁾

Some Mississippi choice-of-law rules that routinely apply Mississippi law neither claim long historical pedigree nor can be deemed procedural for purposes of constitutional analysis. For such rules to apply constitutionally, the Hague standard must be satisfied: there must be a significant contact or a significant aggregation of contacts creating a Mississippi state interest in applying its law so that application of its law is fair and reasonable. Of course, most applications of Mississippi law will satisfy this standard. It will be constitutional to apply Mississippi law to causes of action that arise in Mississippi and to actions that arise out-of-state that involve Mississippi residents. Nevertheless, possible problems may arise with respect to the Mississippi Uniform Commercial Code (which seeks to preempt any other state's products liability laws) and Mississippi's practice of applying its comparative negligence statute as a matter of policy in cases where the accident occurs in and there are overwhelming contacts in some other state.⁽⁴²⁰⁾

B. Choice-of-Law Rules That Discriminate Against Foreign Parties

Mississippi conflicts law favors Mississippi residents in several situations. For example, when a cause of action accrues in another jurisdiction and the cause of action would be time barred by that jurisdiction's statute of limitations but not by Mississippi's, the Mississippi borrowing statute allows Mississippi resident to still bring a claim but not nonresidents.⁽⁴²¹⁾ Similarly, an Alabama passenger injured in Mississippi was required to prove wanton misconduct by the Alabama trucking company for its acts in Alabama while a Mississippi passenger might not have needed to prove more than ordinary negligence.⁽⁴²²⁾ The application of less favorable law against a party due to the party's domicil or residence raises serious equal protections and privileges and immunities issues that have not yet been authoritatively resolved.

1. Equal protection

The equal protection clause⁽⁴²³⁾ prevents states from discriminating against all persons (including aliens⁽⁴²⁴⁾ and corporations⁽⁴²⁵⁾) based on their domicile or residence unless the differing treatment is designed to achieve a legitimate state purpose and is rationally related to achieving that purpose.⁽⁴²⁶⁾ In older cases the Supreme Court upheld a variety of state laws that discriminated against nonresidents,⁽⁴²⁷⁾ while striking some procedural disadvantages as unconstitutional.⁽⁴²⁸⁾ It is hard to reconcile the older decisions; moreover, equal protection law has evolved significantly in the half-century since many cases were decided.

A few more recent decisions have found choice-of-law distinctions based on residence or domicile permissible.⁽⁴²⁹⁾ Though there is considerable scholarship on the problem,⁽⁴³⁰⁾ the scholars themselves are divided. Some scholars argue that equal protection broadly prohibits choice-of-law rules discriminating on the basis of domicile or residence.⁽⁴³¹⁾ Another argues that a choice-of-law rule that discriminates on the basis of domicile or residence is constitutional.⁽⁴³²⁾ Yet another assumes that a choice-of-law rule that discriminates on the basis of domicile or residence is constitutional as long as adverse law is the same that would be applied by the nonresident's home state courts.⁽⁴³³⁾

In Metropolitan Life Insurance Co. v. Ward,⁽⁴³⁴⁾ the Supreme Court held that Alabama's higher tax rates on out-of-state insurance companies violated the equal protection clause.⁽⁴³⁵⁾ The Court required the statutory distinction between residents and nonresidents both 1) to advance a legitimate state purpose, and 2) to be rationally related to the purposes.⁽⁴³⁶⁾ The trial court found two legitimate state purposes for the legislative classification: first, encouraging formation of new Alabama insurance companies,⁽⁴³⁷⁾ and second, encouraging capital investment in Alabama securities.⁽⁴³⁸⁾ But the Supreme Court reversed, concluding that the advancement advancing of purely local economic interests by discriminating against foreign interests was not legitimate.⁽⁴³⁹⁾ It did not consider whether the means chosen were rationally related to achieving the state purpose.⁽⁴⁴⁰⁾

Key to surviving an equal protection challenge will be identifying a legitimate state interest behind the classification. For example, it can be argued that the discrimination against nonresident plaintiffs in the borrowing statute advances a forum interest of deterring forum shopping.⁽⁴⁴¹⁾ So, too, it can be argued that applying the foreign limitations period against foreign plaintiffs under the Mississippi borrowing statute advances legitimate Mississippi interests in encouraging comity and reciprocity.⁽⁴⁴²⁾ Similar arguments can be advanced to support the judge-made rules, adopting the Restatement Second, in which substantive choice-of-law in some cases favors Mississippi resident parties.

Other legislation may be harder to defend. It may be hard to find a legitimate state purpose for the shorter statute of limitation for foreign judgments against Mississippi residents because Mississippi statutes provide a longer period for enforcing Mississippi judgments against the same class of defendants.⁽⁴⁴³⁾ A longer limitations period for claims on foreign judgments against Mississippi residents might advance legitimate interests by assuring a remedy on the theory that non-Mississippi residents would be less likely to have assets in state necessary to satisfy the foreign judgment. In the absence of any legislative history or explanation in the cases, the suspicion is unavoidable that the discrimination goes back to days of parochial protectionism of local interests and may not survive constitutional challenge.

2. Privileges and immunities

The privileges and immunities clause proclaims: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States."⁽⁴⁴⁴⁾ This clause has less scope than the equal protection clause because it only applies to "citizens" of states, which do not include aliens or corporations,⁽⁴⁴⁵⁾ and because it applies only to rights that bear on the vitality of the nation as a whole.⁽⁴⁴⁶⁾

Older Supreme Court decisions held that certain procedural advantages accorded to residents, such as a shorter limitations period for nonresident plaintiffs, was not a matter of such great importance as to raise a privileges and immunities issue.⁽⁴⁴⁷⁾ Some scholars have assumed the clause has bearing on decisions to apply law based on citizenship in choice-of-law cases.⁽⁴⁴⁸⁾

In Austin v. New Hampshire,⁽⁴⁴⁹⁾ the Supreme Court held that a state tax scheme that imposed income tax only on nonresidents violated the privileges and immunities clause because the class of nonresidents included citizens of other states and the tax scheme failed to accord "substantial equality of treatment" in taxing residents and nonresidents.⁽⁴⁵⁰⁾ (The special tax on nonresidents would have been permissible if it had been designed to equalize tax treatment by compensating for other local taxes paid disproportionately by residents.⁽⁴⁵¹⁾) Although that case was concerned specifically with discriminatory taxing schemes, which had historically been viewed with concern under the privileges and immunities cases,⁽⁴⁵²⁾ the Court emphasized that the privileges and immunities clause served both to protect individual's from discriminatory treatment and to protect "the structural balance essential to the concept of federalism,"⁽⁴⁵³⁾ by protecting non-citizens from discriminatory legislation in which they cast no vote.⁽⁴⁵⁴⁾ Under the reasoning of Austin, therefore, protectionist legislation that discriminates in favor of Mississippi residents (such as statutes of limitations⁽⁴⁵⁵⁾) may be particularly vulnerable to privileges and immunities challenges. But if such legislation is found to be unconstitutional, it is preferable that it be done so on equal protection grounds, so that different statutes of limitations do not apply to natural persons and corporations.⁽⁴⁵⁶⁾

II. Sovereign Immunity⁽⁴⁵⁷⁾

A. Actions Against Foreign Countries

The federal Foreign Sovereign Immunities Act accords extensive sovereign immunity to foreign countries.⁽⁴⁵⁸⁾ Limited exceptions to immunity include: tort claims for acts committed in the United States resulting in death, personal injuries, or property damages;⁽⁴⁵⁹⁾ official acts of torture, murder, or terrorism against United States nationals by states designated as state sponsors of terrorism;⁽⁴⁶⁰⁾ acts performed in the United States in connection with commercial activity in the United States and acts performed outside the United States in connection with commercial activity outside the United States that have a direct effect in the United States;⁽⁴⁶¹⁾ certain property disputes involving property located in the United States;⁽⁴⁶²⁾ certain actions to enforce maritime liens.⁽⁴⁶³⁾

When immunity does not bar a claim, a foreign country is liable for actual damages "in the same manner and to the same extent as a private individual under like circumstances,"⁽⁴⁶⁴⁾ but punitive damages are not available.⁽⁴⁶⁵⁾ Because the exclusion of punitive damages would prevent any recovery under the law of jurisdictions that construe wrongful death awards as punitive, the statute permits a recovery in such instances but "measured by the pecuniary injuries resulting from such death."⁽⁴⁶⁶⁾

The Act creates a cause of action by incorporating the same substantive law that would apply in a claim against a private individual and apparently leaves states no room to permit greater immunity to foreign sovereigns than that provided by the Act. It is unlikely that many cases will be litigated in state court,⁽⁴⁶⁷⁾ but the Mississippi choice-of-law rules applicable to private individuals would apply to claims against the foreign countries as well as the immunities provided by the Act. Federal courts are divided as to whether the Act requires them to apply the conflict-of-laws law of the state in which they sit or the conflict-of-laws law of the place of the act giving rise to the cause of action.⁽⁴⁶⁸⁾

B. Actions Against Other States

1. Federal court

Federal courts lack subject matter jurisdiction over actions brought by private persons against states of the United States.⁽⁴⁶⁹⁾

2. State court

Actions brought by private persons against states are not barred in other state courts by any federal law.⁽⁴⁷⁰⁾ A Mississippi state court is free to disregard a sister state's defenses of sovereign immunity, caps on damages, or other conditions that the law of the foreign state imposes on claims brought against it as a sovereign. Foreign state assets in Mississippi may be attached to satisfy a judgment.⁽⁴⁷¹⁾

The Mississippi Supreme Court has held under its torts choice-of-law rules that Mississippi law applies to a claim for injuries inflicted in Mississippi on a Mississippi resident by the state of Alabama.⁽⁴⁷²⁾ The Court proclaimed (in dictum) that when Mississippi substantive law applies under its choice-of-law rules, a foreign sovereign is entitled to no defense of sovereign immunity: "A foreign government entity enjoys no greater status under our tort law than any other similarly situated tort defendant. We find no compelling public policy considerations which would indicate that Brewer State Junior College should enjoy immunities above and beyond those provided to our citizens.⁽⁴⁷³⁾

It is fair and reasonable to hold foreign states accountable for torts they commit in this state, regardless of whether they retain sovereign immunity in their own courts. But the supreme court did not consider possible reasons to extend to other states the limits and conditions imposed on claims against Mississippi under the Mississippi Torts Claim Act.⁽⁴⁷⁴⁾ The act does not apply to foreign states by its terms, but an argument might be made for extending it to sister states on grounds of comity. First, the historical background discloses that foreign sovereigns traditionally enjoyed complete immunity in Mississippi state courts.⁽⁴⁷⁵⁾ Second, foreign states are more like the state than like private citizens and principals of comparable treatment may favor according limited sovereign immunity to foreign states. Third, the legislative balance of the Mississippi Torts Claim Act between compensating private parties and limiting state liability state may apply with equal force to claims against foreign sovereigns. Fourth, the purposes behind Mississippi's limitation of its own sovereign immunity might be promoted by declining to treat foreign states as private citizens, because foreign states that are denied the benefits of Mississippi's immunity in

Mississippi courts might deny Mississippi comparable protection in their foreign courts.

There are stronger reasons to apply the foreign state's own law of sovereign immunity in cases that arise outside Mississippi. For example, in a claim brought by an Alabama citizen against Alabama for injuries inflicted in Alabama, there seems no reason to disregard Alabama's sovereign immunity, and good reasons for recognizing the defense.⁽⁴⁷⁶⁾ A harder case would be presented where a Mississippi resident is injured out-of-state by a foreign sovereign. Although the Mississippi Supreme Court has suggested that the foreign immunity choice-of-law should be resolved like any other substantive tort issue, the legitimate claims of a sovereign to control the legal effects of its own acts in its own territory may outweigh the compensatory purposes of tort law that might otherwise suggest subjecting the foreign sovereign to liability under Mississippi law.

Endnotes

1. Professor of Law, the University of Mississippi School of Law. I am grateful to James L. Robertson who has tried to teach me Conflict of Laws for over a decade and who made several helpful suggestions for this Article, and I thank the Lamar order for a summer research grant and Amy Felder Reid for research assistance.

Material quoted in this Article from the Uniform Enforcement of Foreign Judgments Act, Uniform Foreign Country Money-Judgments Recognition Act, Uniform Conflict of Laws Limitations Act, Uniform Certification of Questions of Law Act, and Uniform Probate Code is copyrighted by the National Conference of Commissioners on Uniform State Laws. Text quoted from the Restatement of the Law, Conflicts of Law is 1934 by the American Law Institute; text quoted from the Restatement (Second) of Conflict of Laws is 1971 by the American Law Institute; text quoted from the Restatement (Second) of Conflict of Laws revisions adopted 1988 is 1989 by the American Law Institute. Reprinted with permission. I am grateful to the Conference and the Institute for their permission to reprint this material.

2. Obvious reasons for the increase in such cases include the increase in litigation, the increasing mobility of individuals, and the growth of interstate and international commerce. Legal changes have facilitated the litigation in Mississippi of cases with attenuated connections with the state. See, e.g., International Shoe Co. V. Washington, 326 U.S. 310 (1945)(holding that service of process in state in not a constitutional requirement for the exercise of jurisdiction in personam); Miss. Code Ann. § 13-3-57 (1996 supp.)(general long-arm statute); Jones v. Chandler, 592 So. 2d 966 (Miss. 1991)(asserting common-law long-arm jurisdiction not otherwise authorized by statute in action for child support against resident of Tennessee who was father of Mississippi child).

3. U.S. Const. art VI § 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").

4. In addition to the treatment of choice-of-laws problems in this article, see the excellent discussion by Jeffrey Jackson, "Choice of Law," in 1 Jeffrey Jackson, Mississippi Civil Procedure at 4-1 to 4-41 (1997), which is updated annually.

5. "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."). U.S. Const. art. IV § 1. The Constitution adopted the obligation to enforce judgments from other states from Article IV or Articles of Confederation of 1777 ("Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State.").

6. "[T]he judgment of a state court should have the same credit, validity, and effect, in every other court in the United States, which it had in the state where it was pronounced, and whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the United States." Hampton v. M'Connel, 16 U.S. (3 Wheat.) 234, 235, 4 L. Ed. 378, 379 (1818)(Marshall, C.J.); see also Mills v. Duryee, 11 U.S. (7 Cranch) 481, 484, 3 L. Ed. 413 (1813)(Story, J.).

7. U.S. Const. art. IV § 1.

8. 28 U.S.C. § 1738:

The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

See generally Lea Brilmayer, Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context, 70 Iowa L. Rev. 95 (1984). The procedure for proving nonjudicial records is set forth in 28 U.S.C. § 1739.

9. Federal courts must recognize state judgments. St. John v. Wisconsin Employment Relations Board, 340 U.S. 411 (1951). And states must recognize federal judgments. Stoll v. Gottlieb, 305 U.S. 165 (1938), Crescent City Live Stock Co. B. Butchers' Union Slaughter House Co., 120 U.S. 141 (1887), Embry v. Palmer, 107 U.S. (17 Otto) 3 (1882); see generally Jack H. Friedenthal et al., Civil Procedure § 14.15 at 695 (2d ed. 1993). Obviously, federal courts must also recognize judgments from other federal courts. Occasionally, the theoretical source of the binding effect of federal law is questioned, and most authorities agree that federal judgments are binding as a matter of federal law not because of principles derived from the Erie doctrine. See generally id. at 697. Federal legislation provides procedures for registering federal judgments. 28 U.S.C. § 1963.

10. "In this acts 'foreign judgment' means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state." Miss. Code Ann. § 11-7-301. The great majority of states have adopted the Act. See Uniform Enforcement of Foreign Judgments Act, 1964 Revised Act, 13 Uniform Laws Ann. 13 (1997 cumm. supp.)(listing jurisdictions adopting uniform act).

11. Miss. Code Ann. § 11-303:

Said clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of any county in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a circuit court of any county in this state and may be enforced or satisfied in like manner, subject to the provision of Section 15-1-45.

The Act provides, however, that a foreign tax judgment in favor of a foreign state for income taxes on benefits from a pension or retirement plan shall not operate as a property lien, nor can the judgment debtor's property be executed on to satisfy the foreign tax judgment. See id. and Miss. Code Ann. § 85-3-52. Although an enrolled judgment operates as a lien on the judgment debtor's property under Mississippi law, such foreign tax judgments are not accorded the same treatment. See id. § 11-7-191 (judgments operate as liens after enrollment except for foreign tax judgments described in section 85-3-52).

Although the statute does not prohibit the enforcement of such foreign tax judgments, it excludes the most effective means for satisfying such judgments by limiting execution to some method, like garnishment, that does not touch the debtor's property. (Of course, clever judgment creditors will recognize that rights in bank accounts and income streams from retirement sources are themselves not property.) This limitation significantly reduces the foreign state's power to satisfy a judgment and immunizes whole categories of persons including those who moved property to Mississippi for the sole purpose of avoiding valid tax claims in another state. The exemption thus seems not only to be bad policy but inconsistent with the state's obligations under the full faith and credit clause. Though tax and penal claims that have not been reduced to judgment may not be covered by the full faith and credit clause, see, e.g., Nelson v. George, 399 U.S. 224, 229 (1970), tax judgments are. Milwaukee County v. M.E. White Co., 296 U.S. 268, 279 (1935)("We conclude that a judgment is not to be denied full faith and credit in state and federal courts merely because it is for taxes.").

12. Miss. Code Ann. § 11-7-305(1)-(2).

13. Miss. Code Ann. § 11-7-305(3).

14. The stay is mandatory upon a showing that an appeal is pending or will be taken or that a stay has been granted. The stay is conditional upon showing that the judgment debtor has provided any security required by the foreign state. Miss. Code Ann. § 11-7-307(1).

15. The stay is mandatory upon showing any grounds for staying enforcement under Mississippi law. But this stay is conditioned upon showing that security has been provided as required by Mississippi law. Id. §11-7-307(2). For the procedure regulating stays in Mississippi, see Miss. R. Civ. P. 62. The Mississippi automatic ten-day stay without security, id. 62(a), should entitle the foreign judgment debtor to a comparable stay without the need to provide security, but the statute does not make the stay automatic and requires the judgment debtor to make a showing to the circuit court that the judgment debtor is entitled to the stay.

16. E.g., Davis v. Davis, 558 So. 2d 814, 817 (Miss. 1990)("This State is required by the United States Constitution. . .to give full faith and credit to all final judgments. . ."). "[I]t is generally assumed that recognition, in the interstate setting, is constitutionally required only for final decrees and judgments." Scoles & Hay, § 24.8 at 963. Finality is determined by the law of the jurisdiction that entered judgment. Id., William M. Richman & William L. Reynolds, § 112[b] at 342 (2d ed. 1993)("A judgment not final under the law of the state which rendered it is not entitled to full faith and credit."). For example, whether a judgment is final and enforceable pending post trial motions or on appeal depends on the law of the jurisdiction that entered the judgment. Scoles & Hay, supra, § 24.8 at 963.

17. This does not mean that there has been an actual judicial consideration of the claims reduced to judgment, only that the judgment settles those claims. For example, a valid default judgment is binding. The Annotation to the Mississippi Code §11-7-303 states that "In order for full faith and credit to apply, the foreign court must have addressed the merits of the case in rendering its judgment." [citing language in Davis v. Davis, 558 So. 2d 814, 818 (Miss. 1990) ("Additionally, for full faith and credit to apply, the foreign court must have addressed the merits of the case in rendering its judgment." The Davis court cited Lee v. Swain Bldg. Materials, Co, 529 So. 2d 190 (Miss. 1988), which had observed (in holding dismissals on ground of limitations not subject to full faith and credit), "A condition precedent for application of the full faith and credit clause if that the judgment in the sister state has addressed the merits of the case." These statements are seriously misleading. While it is true that a judgment must be "on the merits" in order to be subject to full faith and credit, it is not true that the court entering judgment had to have actually considered or addressed the merits.

Like default judgments, some other judgments resulting from procedural defaults and judgments dismissing a plaintiff's action for failure to prosecute or for multiple dismissals count as "on the merits" for purposes of the full faith and credit clause. The best guide for whether a judgment is on the merits is thus not whether a court actually addressed the claim but whether the judgment debtor had an opportunity to litigate the claim. See generally Eugene F. Scoles & Peter Hay, Conflict of Laws, supra note ___, § 24.24 at 988 (2d ed. 1992); Richman & Reynolds, supra note ___, § 112[a] at 341-42.

18. See Compagnie des Bauxites de Guinee v. L'Union Atlantique S.A. d'Assurances, 723 F.2d 357 (3d Cir. 1983)(dismissal for lack of personal jurisdiction not a judgment on the merits). See generally Richman & Reynolds, supra note ___, § 112[a] at 342.

19. Davis v. Davis, 558 So. 2d 814, 817 (Miss. 1990)("This State is required by the United States Constitution. . .to give full faith and credit to all final judgments of other states and federal courts unless (1) 'the foreign judgment itself was obtained as a result of some false representation without which the judgment would not have been rendered' [citation omitted] or (2) 'the rendering court did not have jurisdiction over the parties or the subject matter.'" [citing Solitt v. Robertson, 544 So. 2d 1378 (Miss. 1989).]) As this language suggests, the sort of fraud that will permit Mississippi to disregard a judgment from another state must be something more than mere misrepresentations made in the course of the out-of-state proceedings. It must be what used to be called "extrinsic" fraud that affects the jurisdiction of the foreign court. See generally Comment, Direct and Collateral Attack on Judgments, 66 Yale L.J. 526 (1957); Scoles & Hay, supra note ___, § 24.17 at 977, Richman & Reynolds, supra note ___, § 112[c] at 344-45.

Personal jurisdiction in the rendering state's court is a prerequisite. National Exch. Bank v. Wiley, 195 U.S. 257 (1904), Grover & Baker Sewing Mach. Co. v. Radcliffe, 137 U.S. 287 (1890). See Pennoyer v. Neff, 95 U.S. (5 Otto) 714 (1877)(relying on personal jurisdiction exception to obligation to give foreign state judgment full faith and credit as authority in finding that due process prohibits enforcement of judgment from court without personal jurisdiction). A mere empty recitation by the foreign state court that it has jurisdiction is not binding. Thompson v. Whitman, 85 U.S. (18 Wall.) 457 (1873). But the actual determination by the foreign court that it had jurisdiction is binding, Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522 (1931). And the defendant will have established personal jurisdiction by consent or waiver if he appeared and did not timely raise the issue. See, e.g., Miss. R. Civ. P. 12(h)(1)("A defense of lack of jurisdiction over the person. . .is waived (a) if omitted from a motion in the circumstances described in subdivision(g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course."), Fed R. Civ. P. 12 (h)(1).

Notwithstanding dicta in many old cases that subject matter jurisdiction is a prerequisite for a judgment to be entitled to full faith and credit, e.g., Pennoyer v. Neff, 95 U.S. (5 Otto) at , Davis v. Davis, 558 So. 2d at 817, a party may not collaterally challenge the first court's lack of subject matter jurisdiction when the party appeared and litigated and lost on that issue in the first court. The general rule is that a judgment is entitled to full faith and credit when issues of jurisdiction were litigated and decided by the first court in rendering its original judgment. Durfee v. Duke, 375 U.S. 106 (1963). Accord Chico County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940)(holding that collateral attack on fedral court's jurisdiction was barred even the issue was not raised in original federal action when the first court provided an opportunity to litigate the issue). But see Kalb v. Feuerstein, 308 U.S. 433 (1940)(holding that prior litigation in state court after effective date of automatic stay of bankruptcy did not preclude subsequent litigation in which state court's jurisdiction was challenged). See generally Richman & Reynoldsl, supra note ___, § 112[d][2] at 346-48, Scoles & Hay, supra note ___, § 24.14-24.15 at 972-74. Even when the first state's court lacked jurisdiction, its judgment should only be open to collateral attack in another state when such an attack is permitted by the law of the first state. Id. § 24.17 at 976.

20. Richman & Reynolds, supra note ___, § 112[b] at 342-43.

21. See Scoles & Hay, supra note ___, § 15.34 at 537 ("[T]he clear practice of state courts is to recognize the foreign support order. . .to give litigate issues relative to modification, and then to issue a local decree of enforcement, whether this is done on a theory of comity or under Full Faith and Credit."). Accord Laskosky v. Laskosky, 504 So. 2d 726, 731 (Miss. 1987)(holding that interim Canadian custody decree should be accorded comity when challenged by mother, Mississippi resident, absent showing that decree was not in child's best interest).

22. See generally Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, Uniform Child Custody Jurisdiction Act of 1982, Miss. Code Ann. § 93-23-1, Full Faith and Credit for Child Support Orders, 28 U.S.C. § 1738B, Davis v. Davis, 558 So. 2d at 818 (affirming recognition of foreign judgments for support).

23. Brent v. Bank of Washington, 35 U.S. (10 Pet.) 596 (1936), Union National Bank v. Lamb, 327 U.S. 38, 46 (1949) (1949)(Frankfurter, J., dissenting in part). See Lee v. Swain Bldg. Materials Co. 529 So. 2d 188 (Miss. 1988)(holding Mississippi was not required by full faith and credit to recognize a statute of limitations dismissal from another state). See generally Scoles & Hay, supra note ___, § 24.24 at 986 ("[A] judgment dismissing a cause because of the local statute of limitations will not bar a subsequent action on the identical claim in the courts of a sister state."); Richman & Reynolds, supra note ___, § 112[a] at 342.

24. Miss. Code Ann. § 15-1-3: "The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy. However, the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon." See Lowery v. Statewide Healthcare Serv., Inc., 585 So. 2d 778 (Miss. 1991), McDaniel v. Short, 127 Miss. 520, 90 So. 186 (1921), Proctor v. Hart, 72 Miss. 288, 16 So. 595 (1894); Greene v. Greene, 145 Miss. 87, 110 So. 218 (1926)(holding extinguished claim could not be raised as setoff).

25. Justice Scalia emphasized that statutes of limitations were not binding on other jurisdictions historically because they were considered procedural rather than substantive. He found this view supported both by private international law (under which states used forum law for limitations purposes) and local common law (under which the expirations of limitations extinguished the remedy but not the right). Sun Oil Co. v. Wortman, 486 U.S. 717 (1988)(holding that Kansas was not prohibited by full faith and credit from applying longer forum limitations to an action which had not significant aggregations of contacts with Kansas and in which, therefore, due process prohibited application of substantive Kansas law).

But the Court has long recognized that fundamentally different issues are presented when the foreign state has entered judgment on a claim. Fauntleroy v. Lum, 210 U.S. 230, 238 (1908). And it is not clear that the traditional characterization of dismissals as not "on the merits" flowed from a deliberate federal policy that such actions need not be accorded full faith and credit or from the implicit assumption that such dismissals were not considered "on the merits" by the states that entered them. If the federal exception developed by implicit reference to the characterization of the decisions by the state courts, it follows that the federal exception should be modified or abandoned as state courts themselves alter their characterization of their decisions.

26. Under this approach, for example, a Mississippi decision dismissing an action that arose in Mississippi under a Mississippi statute of limitations might be "on the merits," as it not only precludes relitigation in Mississippi but operates to extinguish the underlying claims. In contrast, a Mississippi dismissal that applied the Mississippi limitations period to a foreign claim might not be "on the merits" since the state's reasons for barring foreign claims advance procedural goals: to preserve judicial resources, to treat foreign claims like Mississippi claims, and to discourage forum shopping. Likewise, a Mississippi dismissal applying the foreign limitations period under the Mississippi borrowing statute would advance the same procedural goals and would accordingly be not "on the merits."

27. In Lee v. Swain Bldg. Materials Co., 529 So. 2d 188 (Miss. 1988), Louisiana residents injured in an accident in Louisiana sought to relitigate their tort claim in Mississippi against a Mississippi corporation with its principal place of business in Louisiana after the claim had been dismissed with prejudice by Louisiana courts. Justice Hawkins held that the claim could be relitigated as it was not "on the merits." In Patton v. Mack Trucks, Inc., 556 So. 2d 679, 680 (Miss. 1989), Pennsylvania plaintiffs sought to relitigate a claim against a Pennsylvania defendant that arouse out of a truck accident on Pennsylvania roads after the action had been dismissed by a Pennsylvania a court under the Pennsylvania statute of limitations. Justice Robertson concluded that the precedent of Lee v. Swain Building Materials Co. compelled him to hold that the Pennsylvania judgment was not binding and that the action was governed by the longer Mississippi statute of limitations. Justices Blass and Prather dissented, arguing that, though the full faith and credit clause did not require dismissal, "we ought to. . .hold that we will not entertain such actions where there is no substantial nexus between the State of Mississippi and the parties or interest that are present in the litigation." 556 So. 2d at 681.

The problem presented by these cases with weak contacts with Mississippi was aggravated by Mississippi case law that refused to apply forum non conveniens to dismiss such actions when they were barred elsewhere by a statute of limitations. Shewbrooks v. A.C. & S., Inc. (Miss. 1988).

Most such cases would now be dismissed in Mississippi because the general statute of limitations has been shortened from six to three years and because Mississippi has adopted a borrowing statute that effectively bars out-of-state claims when they are barred by the foreign limitations period. See infra notes ___ to ___ and accompanying text.

28. For the distinction between substantive and procedural statutes of limitations, see infra notes ___ to ___ and accompanying text.

29. See Steve D. Thomson Trucking Co. v. Dorsey Trailers, Inc., 870 F.2d 1044, 1046 (holding dismissal by Louisiana court of claim as time barred operated as claim "on the merits" to bar relitigation even though Mississippi statute of limitations had not yet expired). Austin v. Super Valu Stores, Inc., 31 F.3d 615 (8th Cir. 1995)(reaching same result but by referring to the res judicata law of Louisiana). Contra Warner v. Buffalo Drydock Co., 67 F.2d 540 (2d Cir. 1933).

30. 28 U.S.C. § 1652 ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.").

Although the historical context of this old statute and the term "rules of decision" make it questionable whether Congress expected the statute to apply to statutes of limitations (or at least "procedural" ones), it has been so applied by federal courts even in cases based on federal question jurisdiction. See McCluny v. Silliman, 28 U.S. 3 (Pet.) 270, 277 (1830); Baker v. F&F Investment, 420 F.2d 1191, 1194 (1970).

31. State statutes of limitations are "substantive" and apply in diversity actions brought in federal court. Guaranty Trust Co. v. York, 326 U.S. 99 (1945).

32. The theoretical sources of distinct principles of res judicata in federal court are discussed in Ronald E. Degnan, Federalized Res Judicata, 85 Yale L.J. 741 (1976).

33. The lead case, Fauntleroy v. Lum, 210 U.S. 230, 238 (1908), arose in Mississippi back in the days when gambling was illegal and criminal. Mississippi statutes prohibited sales of cotton futures, criminalized such conduct, and provided that such contracts "shall not be enforced in any court." 210 U.S. at 234. The parties to such a prohibited contract submitted it to arbitration, and the plaintiff commenced an action in Missouri on the arbitration award, serving the defendant while he was temporarily in Missouri. The defendant did not raise illegality as a defense in the arbitration proceedings, and the Missouri court would not allow the defendant to raise illegality and entered judgment on the arbitration award.

The plaintiff sought to enforce the Missouri judgment in Mississippi, but Mississippi courts refused to recognize it. The Supreme Court reversed, requiring Mississippi to enforce the Missouri judgment even though the original obligation was unenforceable and criminal under Mississippi law.

Although the Court was divided, four justices dissenting, and the holding could be explained on far grounds, Fauntleroy has been consistently read as authority for the absolute proposition that there is no public policy exception to full faith and credit. Although Scoles and Hay suggest that the holding is justified by the underlying policy of precluding relitigation of issues that have been determined after a full opportunity to litigate, Scoles & Hay, supra note ___, § 24.20 at 980, the procedural history of the case makes it uncertain whether there was an opportunity to raise the defense of illegality or to argue the applicability of Mississippi law in the foreign court.

34. The issue was specifically left open in Milwaukee County v. M.E. White Co., 296 U.S. at 279. Scoles and Hay discuss the history of and question the rule. Scoles & Hay, supra note ___, § 24.23 at 984-86.

35. Huntington v. Attrill, 146 U.S. 657 (1892).

36. Williams v. North Carolina, 317 U.S. 287 (1942) [Williams I], held that North Carolina must recognize even an ex parte divorce decree from a Nevada court, provided that the Nevada court had jurisdiction. But in Williams v. North Carolina, 325 U.S. 226 (1945) [Williams II], the Court upheld the North Carolina decision to disregard the Nevada decree after North Carolina concluded that the party obtaining the divorce had not obtained valid domicile in Nevada.

37. Barber v. Barber, 323 U.S. 77 (1944), Sistare v. Sistare, 218 U.S. 1 (1909).

38. See generally Scoles & Hay, supra note ___, §§ 24.9-24.10 at 964-67; Willis Reese, Full Faith and Credit to Foreign Equity Decrees, 42 Iowa L. Rev. 183 (1957).

39. For example, In James v. Grand Trunk W.R.R. Co. 14 Ill. 2d 356, 152 NE.2d 858 (1958), Illinois disregarded the injunction issued by another state that ordered a party to terminate litigation in Illinois. So, too, a foreign judgment attempting directly to affect property rights in real property in Mississippi is not subject to full faith and credit, Fall v. Eastin, 215 U.S. 1 (1909), though parties to out-of-state proceedings affecting property rights in Mississippi are bound by that decision (at least when the foreign court actually determined that it had jurisdiction over the property), Durfee v. Duke, 375 U.S. 106 (1963).

40. Equitable Life Assurance Soc'y v. Gex' Estate, 184 Miss. 577, 186 So. 660 (1939)(holding that Louisiana court's preliminary order restraining Louisiana resident from further prosecution of Mississippi case should be recognized); Fisher v. Pacific Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846 (1916)(recognizing order of Tennessee court enjoining Tennessee resident from filing action against corporation doing business in Tennessee). See generally Robert W. Wall, Jr., Note, Conflict of Laws-Injunction Restraining Party From Bringing Suit in Another State--Recognition of Decree in Second State, 12 Miss. L.J. 512-15 (1940).

41. Tri-State Transit Co. of Louisiana v. Mondy, 194 Miss. 714, 12 So. 2d 920 (1943). In affirming denial of injunction, the court pointed out that the chancellor had found that the plaintiff had established residence in Mississippi and that the defendant's fears that the case would be governed by less favorable Mississippi law were groundless because Mississippi would apply (at that time) the substantive law of Louisiana, 12 So. 2d at 922. The opinion nonetheless stated a broad rule against the issuance of an injunction based on a foreign injunction: "[W]e do not think that [foreign] injunction can be made the ground for the issuance of another injunction here. Its validity and effect are matters to be, and properly may be, pleaded and contested as a defense in the law action, and, as to that, the Transit Company has an adequate remedy at law." 12 So. 2d at 923-24.

42. See generally Scoles & Hay, supra note ___, § 24.11 at 967 (2d ed. 1992). The omission of a reference to state administrative agencies in § 1738 does not indicate a congressional intent to exclude the determination of such agencies, since the § 1738 predates the development of such agencies. University of Tennessee v. Elliott, 478 U.S. 788, 794-95 (1986). The special treatment of workers compensation awards is discussed infra notes ___ to ___ and accompanying text.

43. Industrial Comm'n of Wisconsin v. McCartin, 330 U.S. 622 (1947)(holding that a second award was permitted unless the statute law of the first state contained "unmistakable language" that barred a second award by another state), questioned and possibly overruled by the reasoning adopted by most of the justices in Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980).

44. 448 U.S. at 281 ("There is neither inconsistency nor double recovery.").

45. Thomas v. Washington Gas Light Co., 448 U.S. 261, 286 (1980)(holding full faith and credit did not prevent subsequent supplemental workers compensation award in District of Columbia even though barred by law of Virginia which granted first award).

46. Three justices disagreed with the plurality's reasoning but concurred nevertheless because of precedent. Thomas, 448 U.S. at 289 (White J., concurring)("Although I find McCartin to rest on questionable foundations, I am not now prepared to overrule it.").

47. Thomas, 448 U.S. at 282, 284.

48. 448 U.S. at 286 (White, J., concurring), Scoles & Hay, supra note ___, § 24.26 at 990-91, Richman & Reynolds, supra note ___, § 114[c][3]-[4] at 356-59 (criticizing rationale of plurality opinion). Justices Marshall and Rehnquist dissented, arguing that the Court should abandon the workers compensation altogether. 448 U.S. at 295-96.

49. Treines v. Sunshine Mining Co., 308 U.S. 66 (1939)(justifying last-in-time rule by a presumption that the most recent decision correctly resolved whether prior decisions were entitled to full faith and credit). Accord Sutton v. Leib, 342 U.S. 693 (1940). See generally Ruth B. Ginsburg, Judgments in Search of Full Faith and Credit: the Last-in-Time Rule for Conflicting Judgments, 82 Harv. L. Rev. 798 (1969); Richman & Reynolds, supra note ___, § 111[b] at 340-41; Scoles & Hay, supra note ___, § 24.29 at 993.

50. See, e.g., Laskosky v. Laskosky, 504 So. 726, 730 (Miss. 1987)(holding foreign decree enforceable unless contrary to Mississippi public policy).

51. Hilton v. Guyot, 159 U.S. 113, 202-03 (1895). He formulated the rule slightly differently:

When. . .the foreign judgment appears to have been rendered by a competent court having jurisdiction of the cause and of the parties, and upon due allegations and proofs and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that by the principles of international law and by the comity of our own country it should not be given full credit and effect.

159 U.S. 205-06.

52. Hilton v. Guyot, 159 U.S. 113.

53. For the list of jurisdictions that have adopted the Act, see 13 Uniform Laws Ann. at 77 (1997 cumm. supp.).

54. Uniform Foreign Country Money-Judgments Recognition Act § 3, 13 Uniform Laws Ann. 265 (1986). The conversion of a judgment in foreign currency presents its own problems. In 1989 a Uniform Foreign-Money Claims Act was proposed to deal with the problems of converting currency amounts contained in judgments. It has already been adopted by 21 states and the District of Columbia, but not by Mississippi. See Uniform Foreign-Money Claims Act, 13 Uniform Laws Ann. 60-76 (1997 cumm. supp.). See also Restatement (Second) of Conflict of Laws §§ 144, 101 (1971); see generally Scoles & Hay, supra note ___, § 24.40 at 1008-09

55. Id. § 2 at 264. The Act permits the court to stay proceedings "[i]f the defendant satisfies the court either than an appeal is pending or that he is entitled and intends to appeal from the foreign judgment. . ." Id. § 6.

56. Id. § 4(a) at 268. The Comment does not explain what "is not conclusive" means. In the context of Hilton v. Guyot, this terminology would suggest that the foreign country judgment might still be rebuttable prima facie evidence of the obligation. But it seems unfair to allow such effect to be given to such a seriously defective judgment--indeed, it raises due process concerns. Accordingly, the better interpretation of "is not conclusive" would be that the words mean must not be given preclusive effect (and, perhaps, must not be given any evidentiary weight). Scoles & Hay assume that the language sets forth conditions or prerequisites. Scoles & Hay, supra note ___, § 24.36 at 1001.

57. Id. § 4 at 268.

58. 159 U.S. at 227 ("[J]udgments rendered in France, or in any other foreign country by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country, but are prima facie evidence only of the justice of the plaintiff's claim.").

59. Chief Justice Fuller with three justices dissented. In addition to arguing that the foreign judgment vested private rights that should be respected, the dissent argued that the case should be governed by normal principles of res judicata which advance the "public policy that there should be an end to litigation." 159 U.S. at 229 (Fuller, C.J., dissenting).

60. Scoles & Hay, supra note ___, § 24.34 at 998; Richman & Reynolds, supra note ___, § 109 at 327 ("It makes little sense to penalize a private person (the foreign plaintiff) for the acts of his country's courts. The policies that control the law of res judicata generally--fairness, repose, and judicial economy--should govern here as well.").

61. "The application of the doctrine of res judicata does not rest in discretion; and it is for the government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary." 159 U.S. at 234 (Fuller, C.J., dissenting.).

62. Erie R.R. Co. v. Tomkins, 304 U.S. 64 (1938)(holding that federal courts have no general common law making authority). See Tahan v. Hodgson, 662 F.2d 862, ___ n.21 (D.C. Cir. 1981)("[T]he federal courts may now be required by Erie [citation omitted] to apply the rule of the state in which they sit as to the measure of respect that should be accorded the judgment of a foreign nation."). See generally Scoles & Hay, supra note ___, § 24.35 at 1000 ("the Hilton decision therefore probably no longer binds federal courts in diversity cases and its authority seems negligible [footnotes citing federal cases that have declined to follow Hilton omitted]."). Some states require reciprocity either as a matter of case law or by statute. In such cases, the federal court may be required by the Erie doctrine to impose reciprocity as a condition to enforcing a foreign country judgment.

See, e.g., Banque Libanaise pour le Commerce v. Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990)(applying Texas state law, including reciprocity requirement, and refusing to enforce foreign judgment).

63. For example, if a compulsory counterclaim has been waived according to foreign law it was not raised in foreign proceedings, it would erode the value of the foreign judgment to permit the counterclaim to be litigated in Mississippi just because it does not qualify as a compulsory counterclaim under Mississippi rules. Conversely, it would be unfair to bar litigation of a counterclaim that treated as permissive under foreign law just because Mississippi treats it as compulsory, for the party might have relied on the nonpreclusive effect of the judgment under the foreign law in deciding not to raise the counterclaim.

64. This is called "issue preclusion" or "collateral estoppel"--the terms mean the same thing, but issue preclusion is favored by more recent scholars as it is a more apt description. For example, a car driver brings a law suit against a truck driver in Arkansas for an accident in Arkansas. The truck driver defends on theory that he was not the driver of the truck that injured car driver, and the jury returns a verdict for the defendant truck driver. If the car driver commences a separate action against the trucking company in Mississippi that employed the truck driver on a theory of respondeat superior, the trucking company might argue that the claim against the truck driver is barred by the judgment in favor of the driver. But, even if the claim is not barred altogether as a matter of law, the trucking company might seek to prevent relitigation of the factual issue of the truck driver's identity as the tortfeasor because that issue was adversely determined against the plaintiff in prior proceedings in which the issue was fully litigated and necessary to the determination.

The requirements for issue preclusion are: 1) the very same fact or issue, 2) must have been actually litigated, 3) determined by the court, and 3) necessary to the determination. See generally Fleming James, Jr., et al., Civil Procedure § 11.17 608 (4th ed. 1992); Friedenthal et al., supra note ___, § 14.11 at 673. Only parties in the first proceedings, or persons in privity with them, can be adversely bound by the first judgment. Id. § 14.13 at 683. (To bind a nonparty would deny that person a day in court on the disputed issue in violation of due process.) See generally Eli J. Richardson, Taking Issue with Issue Preclusion: Reinventing Collateral Estoppel, 65 Miss. L.J. 41, 49 (1995)(reviewing traditional formulations of requirements for collateral estoppel).

The specific requirements of issue preclusion are complex and vary from jurisdiction to jurisdiction. For example, some jurisdictions still require mutuality of parties (so that a nonparty to prior litigation may not precude the loser from relitigating an issue determined against it). Mississippi does not require mutuality. See Jordan v. McKenna, 573 So. 2d 1371 (Miss. 1991)(holding defendant convicted of rape collaterally estopped from relitigating facts in subsequent tort action); McCoy v. Colonial Baking Co., 572 So. 2d 850 (Miss. 1990)(affirming dismissal of husband's loss of consortium claim after judgment for defendant in wife's personal injury action).

65. Cf. Jordan v. Mckenna, 573 So. 2d at 1375 ("In a sensense, collateral estoppel functions as though it were a rule of evidence. [Citation omitted.] The party in whose favor the fact was found in the first action is said to enter the second trial with that fact established in his favor."). It would be more accurate to say that the party against whom a fact was previously determined is prevented from relitigating the fact.

66. "So long as applicable preclusion law is the same in both systems, the question is academic." Gene R. Shreve & Peter Raven-Hansen, Understanding Civil Procedure § 114 at 490 (2d ed. 1994). See generally Paul Carrington, Collateral Estoppel and Foreign Judgments, 24 Ohio L.J. 381 (1963)(forum may apply its collateral estoppel law to effect of foreign judgment); Gregory S. Getshow, Comment, If at First You Do Succeed: Recognition of State Preclusive Laws in Subsequent Multistate Actions, 35 Villanova L. Rev. 253 (1990); Jeffrey E. Lewis, Mutuality in Conflict--Flexibility and Full Faith and Credit, 23 Drake L. Rev. 364 (1974). But see Charles Alan Wright, et al., Federal Practice & Procedure § 4468 (1981).

67. "[F]ederal full faith and credit law severely restricts the court's freedom to disregard the preclusion law of the place rendering the judgment. This appears to be true whether the effect sought from the judgment is claim or issue preclusion." Shreve & Raven-Hansen § 114 at 490.

"With respect to preclusion under the law of the court of rendition, the broad reach of the policy is illustrated by the U.S. Supreme Court's holding that the principles of res judicata extend to all issues, including the first court's determination of its jurisdiction over the subject matter and over the parties." Scoles & Hay § 24.2 at 955.

For general discussions of problems of issue-preclusive effect of judgments in other jurisdictions, see Richman & Reynolds, supra note ___, § 107 [c] 318-22; Graham C. Lilly, The Symmetry of Preclusion, 54 Ohio. St. L.J. 289 (1993), Gene R. Shreve, Judgments from a Choice-of-Law's Perspective, 40 Am. J. Comp. L. 985 (1992), Gene R. Shreve, Preclusion and Federal Choice of Law, 64 Tex. L. Rev. 1209 (1986), Sanford N. Caust-Ellenbogen, False Conflicts and Interstate Preclusion: Moving Beyond a Wooden Reading of the Full Faith and Credit Statute, 63 Fordham L. Rev. 593 (1990), Jean A. Mortland, Interstate Federalism: Effect of Full Faith and Credit to Judgments, 16 U. Dayton L. Rev. 47 (1990), Stephen B. Burbank, Interjurisdictional Preclusion and Federal Common Law: Toward a General Approach, 70 Cornell L. Rev. 625 (1985), Barbara Ann Atwood, State Court Judgments in Federal Litigation: Mapping the Contours of Full Faith and Credit, 58 Ind. L. J. 59 (1982), Robert C. Casad, Intersystem Issue Preclusion and the Restatement (Second) of Judgments, 66 Cornell L. Rev. 510 (1981).

68. Shreve and Raven-Hansen refer only to federal cases enforcing state judgments. § 114 at 490 n.8. But these cases are governed by different legal rules. See infra note ___ and accompanying text. Scoles & Hay cite only to Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522 (1931) and Treines v. Sunshine Mining Co., 308 U.S. 66 (1939). Scoles & Hay, supra note ___, § 24.2 at 955 n.9. But both those cases limited collateral attacks on the claim preclusive effect of judgments by parties who had appeared and actually litigated in the prior litigation. Baldwin, 283 U.S. at 525-26 ("We see no reason why this doctrine [res judicata] should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.") Treines held that, when there are inconsistent judgments entitled to claim preclusive effect, the most recent judgment is binding under the full faith and credit clause. See supra note ___.

69. Underwriters Nat'l Assurance Co. v. North Carolina Life and Accident and Health Ins. Ass'n, 455 U.S. 691 (1982)(no collateral attack on first state's subject matter jurisdiction when defendant appeared and litigated issue in first state); Durfee v. Duke, 375 U.S. 106 (1963)(no collateral attack on first state's subject matter jurisdiction when defendant appeared and litigated issue in first state); Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522 (1931)(no collateral attack on first court's personal jurisdiction when defendant appeared and litigated issue in the first forum); Treines v. Sunshine Mining Co., 308 U.S. 66 (1939)(most recent valid state judgment binding under full faith and credit clause notwithstanding prior inconsistent judgments).

70. The Court went out of its way in Durfee v. Duke to emphasize that the decision did not bind any other party or determine any issues other than those presented by the quiet title action.

71. In Harnischfeger Sales Corp. v. Sternberg Dredging Co., 189 Miss. 73, 191 So. 94 (1939), after actual litigation of the claims, a Louisiana court with limited jurisdiction over the property entered judgment for the creditor, foreclosing a chattel mortgage. The creditor subsequently commenced proceedings in Mississippi against the debtor for amount of the debt that remained unsatisfied. The debtor again raised defenses, but the Mississippi Supreme Court held that relitigation of those defenses was precluded by the prior litigation in Louisiana, even though Louisiana itself limited the effect of its judgment to the foreclosure of the chattel mortgage and would have permitted relitigation of substantive defenses in the action in personam against the debtor.

This comports with the result of more recent cases that permit a state to give another state's judgment greater preclusive effect than the first state. Hart v. American Airlines, Inc., 61 Misc. 2d 41, 304 N.Y.S.2d 810 (Sup. Ct. 1969)(permitting New York resident to use Texas judgment against defendant in a related case to preclude defendant's relitigation of its liability, even though Texas would not permit the plaintiff to employ collateral estoppel because Texas required mutuality of parties).

72. Cf. Johnson v. Mississippi, 486 U.S. 578, 585 (1988)(reversing death sentence supported in part by aggravating circumstance of prior New York state felony convicition that was subsequently reversed).

73. Marrese v. American Academy of Orthopedic Surgeons, 470 U.S. 373, 380, 384 (1985)(preclusive effect of prior state judgment in subsequent antitrust litigation determined by law of state entering judgment), Migra v. Warren City School Dist., 465 U.S. 75, 83 (1984)(preclusive effect of prior state litigation on subsequent federal civil rights claims in federal court determined by law of state entering judgment), McDonald v. City of W. Branch, 466 U.S. 284, 287, 292 (1984)(holding federal courts required to give same preclusive effect to state judgments as state entering the judgment but not applying rule to arbitration award).

74. M'Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 327-28 (1839), cited with approval in Sun Oil Co. v. Wortman, 486 U.S. 717 (1988), Union Nat'l Bank v. Lamb, 337 U.S. 38 (1949).

75. See infra notes ___ to ___ and accompanying text.

76. Union Nat'l Bank v. Lamb, 337 U.S. 38 (1949)(holding that Missouri was free to apply its own statute to Colorado judgment but must apply it to date judgment was revived in Colorado when effect of revival in Colorado was to establish new valid judgment).

77. In Roche v. McDonald, 275 U.S. 449 (1928), the plaintiff brought suit on a Washington judgment in Oregon after the limitations period for enforcing the original Washington judgment has expired. Washington refused to recognize the Oregon judgment, but the Court reversed, holding that the Oregon judgment must be accorded full faith and credit.

78. Miss. Code Ann. § 15-1-45 ("All actions founded on any judgment or decree rendered by any court of record without this state shall be brought within seven years after the rendition of such judgment or decree, and not after.").

79. Miss. Code Ann. § 15-1-43 (seven years to bring actions founded on "any judgment or decree rendered by any court of record in this state. . .").

80. Miss. Code Ann. § 15-1-45 ("However, if the person against whom such judgment or decree was or shall be rendered, was, or shall be at the time of the institution of the action, a resident of this state, such action, founded on such judgment or decree, shall be commenced within three years next after the rendition thereof, and not after."). Gray v. Valley, 136 Miss. 886, 101 So. 855 (1925)(three year period applies to judgment debtor who resided in Mississippi at time of action in which judgment was rendered); Marx v. Logue, 71 Miss. 905, 15 So. 890 (1894)(plea of three years must aver that defendant was resident of Mississippi at the time suit was instituted).

81. In Bosich v. Skermetti, 146 Miss. 491, 112 So. 385, 385 (1927) the plaintiff demurred to a three-year limitation defense raised by a Mississippi resident on the ground that the shorter limitation period violated the full faith and credit clause. The plaintiff did not raise equal protection or privileges and immunities issues. The Court upheld the statute against the full faith and credit challenge finding that the limitation period was reasonable, in part because it assumed that many states tolled claims against nonresidents so that "the claim would never be barred in California." See also Watkins v. Conway, 385 U.S. 188, 191 (1966)(rejecting claim that shorter limitation period for foreign judgments violated equal protection "in a scheme that relies upon the judgment State's view of the validity of its own judgments" but not considering problem of longer period for state resident).

82. Miss. Const. § 24("All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay."); see Miles v. Scott County, 33 So. 2d 810 (1948)(construing the requirement that "all courts shall be open" to mean the court must "afford equal access to all."). Shorter statutes of limitations are not unconstitutional when they are based on different kinds of causes of action, Fluor Corp. v. Cook, 551 So. 2d 897 (Miss. 1989)(holding that shorter limitations period for personal injury other than wrongful death did not violate state constitutional guaranty of access to remedy), Anderson v. Fred Wagner & Roy Anderson, Jr., Inc., 402 So. 2d 320 (Miss. 1981)(holding ten-year limitations period not unconstitutional), Cameron v. Louisville, Nashville, New Orleans & Texas Ry. Co., 69 Miss. 78, 10 So. 554 (1891)(one-year limitation period not unconstitutional). But these cases are distinguishable from the problem posed by section 15-1-45 which denies access based solely on the status of the defendant at the time of the original judgment.

83. See infra part VI(B)(1).

84. See infra part VI(B)(2).

85. The traditional rules called for the forum to apply its statute of limitations to foreign claims whether the forum's statute was longer or shorter, Restatement [First] of Conflict of Laws §§ 603, 604 (1934), and was retained by the original version of the Restatement (Second) of Conflict of Laws § 142 (1971). See generally Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments § 576 at 962 (3d ed. 1846)("In regard to statues of limitation or prescription of suits, and lapse of time, there is no doubt, that they are strictly questions affecting the remedy, and not questions upon the merits. . . . And there can be no just reason, and no sound policy, in allowing higher or more extensive privileges to foreigners, than are allowed to subjects.").

Under modern choice of law theories, cases in other jurisdictions began to treat statutes of limitations a substantive, e.g., Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482 (9th Cir. 1987)(holding under California's interest analysis conflict of laws law that longer foreign limitations period applied). Scholars also questioned the traditional approach. See generally Richman & Reynolds, supra note ___, § 90 at 264 ("No good reason exists for the procedural characterization of limitations issues."). Margaret Grossman, Statutes of Limitations and Conflict of Laws: Modern Analysis, 1980 Ariz. St. L.J. 1. The Uniform Conflict of Laws Limitations Act (adopted by five states) treats statutes of limitations as substantive. 12 Uniform Laws Ann. § 2(a) at 158 (1995):

Except as provided by Section 4 [unfairness], if a claim is substantively based:

(1) upon the law of one other state, the limitation period of that state applies; or

(2) upon the law of more than one state, limitation period of one of those states chosen by the law of conflict of laws of this State, applies.

Revisions to the Second Restatement provide exceptions under which the forum will apply the foreign limitations period when applying forum law is unreasonable or where there is no significant forum interest and the claim is barred under by the law of the state having a more significant relationship to the parties. Restatement (Second) of Conflict of Laws § 142 (adopted 1988).

86. See, e.g., White v. Malone Properties, Inc., 494 So. 2d 576, 581-82 (Miss. 1986)(Robertson, J., concurring); Shewbrooks v. A.C. & S. Inc., 529 So. 2d 557, 570 (Miss. 1988)(Robertson, J., dissenting)(criticizing Mississippi's treatment of limitations issues). See generally Dinetia M. Newman, Comment, Mississippi's Statutes of Limitations and Choice of Law Analysis: A Borrowed Conflict, 57 Miss. L.J. 739, 767 (1987)("With criticism abounding and foreign plaintiffs seeking jurisdiction, the Mississippi Supreme Court no longer should refrain from addressing the issue. The time has come for Mississippi to abandon its traditional treatment of statutes of limitation as procedural.").

87. Shewbrooks, 529 So. 2d at 570; Vick v. Cochran, 316 So. 2d 242, 246 (Miss. 1975); Kershaw v. Sterling Drug, Inc., 415 F.2d 1009, 1011 (5th Cir. 1969).

88. See infra note ___.

89. Bethlehem Steel Co. v. Payne, 183 So. 2d 912, 916 (Miss 1966)(holding that claim under Louisiana workers compensation act was barred by Louisiana statute of limitations):

There are a number of well recognized exceptions to the general rule that statutory limitations upon the time within which suit must be brought are procedural. The following exception to the rule is noted in Stumberg, Conflict of Laws, p. 148 (3rd ed., 1963):

Another exception which is frequently made in the decisions exists where a statute which creates the right, in the same enactment provides for the time within which suit is to be brought. In such cases a majority of the courts have taken the position that the limitation qualifies the right so that unless suit is brought within the time allowed under the foreign statute, no suit may be brought at the forum, even though the time there may be longer.

Accord Louisville & Nashville Ry. Co. v. Dixon, 168 Miss. 14, 20, 150 So. 811, 812 (1933)("[W]here a statute creates a right of action which did not exist under the common law and the same statute fixes the time within which action or proceedings to enforce the same may be begun, the time so fixed is not a mere statute of limitations, but is an integral part of the right thus created, is a substantive condition, so that, after the time fixed in the statute, the right to institute an action thereunder becomes extinct, not only in the state which created the right, but everywhere."). See also Price v. Litton Systems, Inc., 784 F.2d 600, 602 (5th Cir. 1986)(holding under Mississippi law that Alabama statute of limitations governed wrongful death action arising in Alabama); Ramsay v. Boeing Co. 432 F.2d 592, 597 (5th Cir. 1970)(holding under Mississippi law that foreign limitation period applies in wrongful death action arising in Belgium because the foreign limitations period was a condition of the existence of the right of action rather than merely a remedy); Fieldman v. Roper Corp., 586 F. Supp. 936, 938 (N.D. Miss. 1984)(applying Mississippi statute of limitations but discussing the exception "when statute creates a right of action and simultaneously provides for a time within which a suit must be brought."). See generally White v. Malone Properties, Inc., 494 So. 2d 576, 581-82 (1986)(Robertson, J., concurring)(discussing and criticizing distinctions between statutes that bar right and remedy); Story, supra note --, § 582 at 975; Restatement of the Law, Conflicts of Law § 605 (1934)("If by the law of the state which has created a right of action, it is made a condition of the right that it shall expire after a certain period of limitation has elapsed, no action begun after the period has elapsed can be maintained in any state."); Scoles & Hay, supra note ___, § 3.10 at 60; Richman & Reynolds, supra note ___, § 90[b] at 265-66; Newman, supra note ___, at 745 n.30; David Watkins Mockbee, Note, Conflict of Laws--Statutes of Limitations--Substantive Foreign Statute Covering at Time of Discovery Governs, 44 Miss. L.J. 276, 279 (1973)(discussing Mississippi cases).

90. Examples include statutes of repose that terminate substantive rights as well as limitations periods that are construed as a matter of law to terminate rights, such as the doctrines of adverse possession or title by prescription. Perkins v. Guy, 55 Miss. 153, 177 (1877); Hamilton v. Cooper, 1 Miss. 542 (1832)(holding in an action on detinue for possession of slaves arising under the laws of another state that the foreign limitations period bards the action when it extinguishes the legal right as well as the remedy), Walls v. General Motors, Inc., 906 F.2d 143, 146 (5th Cir. 1990)("The courts of Oregon. . .hold its statute of repose to be substantive, so Mississippi is bound to apply it."). See generally Story, supra note --, § 582 at 972 (expiration of statute of limitation where property held adversely bars subsequent litigation in forum with longer statute of limitation to which property removed).

It has been suggested that a shorter foreign limitations period for enforcing a judgment will be adopted by the forum as substantive, Scoles & Hay, supra note ___, § 24.32 at 995, but that seems to rely on more recent authority that may not be persuasive, id no. 4 (citing to Restatement, Second, Conflict of Laws).

91. It is possible that Mississippi will retain a traditional territorial test and apply the substantive statute of limitations from the place of the wrong, cf. Miss. Code Ann. § 15-1-65 (borrowing statute borrows limitations period of place where "cause of action accrued"). But it is also possible that Mississippi will resolve conflicts involving statutes of limitations characterized as substantive under the more recent balancing rules adopted for resolving other substantive conflicts. The new approach is discussed infra part VI(B).

One federal court has applied Mississippi's modern choice-of-law rules for substantive conflicts to a case involving a foreign substantive limitations period, though the result would have been the same if territorial rules had governed. Allison v. ITE Imperial Corp., 928 F.2d 137 (5th Cir. 1991)(opinion by Barksdale, J.)(holding that Tennessee' statute of repose barred claims for in injuries sustained by Mississippi employee working temporarily in Tennessee by allegedly defective electrical component of equipment). Four aspects the decision are troubling. First, the court did not consider the possibility that Mississippi would apply a traditional territorial rule for limitations issues. Second, it did not address the possible application of the Mississippi statute mandating application of Mississippi law to limitations of remedies for breaches of implied warranties or merchantability and fitness, Miss. Code Ann. § 75-1-105. Third, though the court plausibly assumed that choice-of-law rules of the Restatement Second should apply and looked at specific rules for torts, 928 F.2d at 139-44, the court ignored the fact that these rules do not apply to limitations issues. Under the most recent version of the Restatement, a forum's statute of limitations applies when the forum has a substantial interest. Restatement (Second) of Conflict of Laws § 142(2)(a)(1988 amendments). The older version of the Restatement contained a provision restating the traditional rule that an action will be time barred "if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy," Restatement (Second) of Conflict of Laws § 143, deleted 1988 amendments. But it did not explain what the "otherwise applicable law would be." Fourth, the court decided the case by applying the presumption that the law of the place of the wrong should apply unless some other state had a more significant relationship. 928 F.2d at 144. Under the Restatement's limitations rules, however, forum law presumptively applies unless barred by the law of a state with a more significant relationship and the forum has no substantial interest. Restatement (Second) of Conflict of Laws § 142(2)(b) (1988 amendments).

See also Jackson v. National Semi-Conductor Data Checkers/DTS, Inc., 660 F. Supp. 65 (S.D. Miss. 1986), which ultimately held that a breach of warranty claim was time-barred under Mississippi law but only after concluding that Alabama was the state with the most significant contacts but that its law should not apply because it characterized it as procedural, suggesting that the Alabama statute would apply if substantive. 660 F. Supp. at 70, 71n.7. The court's analysis proceeded from the erroneous assumption that the constitutional test for application of the Mississippi statute mandating application of Mississippi law (including its limitations period) necessitated a choice-of-law analysis. 660 F. Supp. at 70. It did not. Mississippi's application of its longer statute of limitations was constitutional. See Sun Oil Co. v. Wortman, 486 U.S. 717 (1988), discussed infra note ___.

92. Miss. Rev. Code Ann. § 15-1-65:

When a cause of action has accrued outside of this state, and by the laws of the place outside this state where such cause of action accrued, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state; provided, however, that where such a cause of action has accrued in favor of a resident of this state, this state's law on the period of limitation shall apply.

The effective date of the statute is July 1, 1989. See generally Jackson, supra note ___, § 4-29; Jeffrey Jackson, Legislative Reform of Statutes of Limitations in Mississippi: Proposed Interpretations, Possible Problems, 9 Miss. Col. L. Rev. 232, (1990). The statute has been codified as a successor to a previous statute that had been adopted in 1880 but that had been deprived of much effect because limited to nonresidents who moved to Mississippi after the statute had run on the cause in another state. See Shewbrooks, 529 so. 2d at 57 (Robertson, J., dissenting); see generally, Jackson, supra, at 270-79; Newman, supra note ___, at 753-57. Researches should be forewarned that cases included in the annotations in the Mississippi Code erroneously include the cases construing the predecessor statute (which are inapplicable to the present statute).

93. When the foreign limitations period is longer, the borrowing statute does not apply, but Mississippi, which still characterizes most statutes of limitations as procedural, will apply its own shorter statute of limitations to bar the claim. In those cases where the foreign statute of limitations is deemed substantive, however, Mississippi is presumably required to apply the longer foreign substantive claim.

94. There is no official legislative history in Mississippi, but the historical context of the enactment of the borrowing statute makes it clear that its purpose was to stop foreign forum shoppers commencing actions in Mississippi that had nothing to do with the state. To this same end, the legislature also cut the time period of the catchall statute of limitations in half. Miss. Code Ann. § 15-1-49.

Understanding the purpose of the borrowing statute is important for interpreting it. The clause providing Mississippi residents the benefit of a longer Mississippi limitations period was intended only to preserve for residents the prior practice, under which the forum limitations period was applied when procedural. It was never intended to extend the time for bringing an action which was barred by a foreign substantive statute of limitations.

95. This problem is confronted in applying many borrowing statutes. It can be difficult to localize the place where a certain cause of action accrued or arose. A tort case may premise liability on omissions (that occurred everywhere for extended periods of time) or on continuing wrongful acts, e.g., Duke v. Housen, 589 P.2d 334 (Wyo. 1979)(continuous tortious acts and failures to warn during cross-country car trip). Moreover, the location of a claim may depend on its legal characterization. Cf. Lumbermen's Mutual Casualty Co. V. August, 530 So. 2d 293 (Fla. 1988)(holding that cause of action for uninsured motorist coverage arose where the insurance contract was entered into).

These difficulties may be aggravated by newer choice of law approaches under which the substantive law that applies may differ from the place of the wrong that traditionally established the place where the cause of action accrued. See Vick v. Cochran, 316 So. 2d at 242 (Miss. 1975)(place of accrual can be different from place whose law applies to tort). For example, under Mississippi's choice of law rules a plaintiff injured in Tennessee may have a cause of action that is not recognized under the law of Tennessee. In such a case it might be argued that the place where the cause of action accrued should be Mississippi, the place under the substantive law of which the party acquired a cause of action. See generally Jackson, supra note ___, § 4-30 ("There are two ways to interpret the borrowing statute's language on accrual. One is to use the territorial approach of the First Restatement. That territorial approach is circular and conclusory, and was repudiated by the Mississippi Supreme Court. . .The second method is to [use] the law of the state with the most significant relationship to the parties, event, occurrences or transaction.").

96. See Eunice L. Suarez v. Ford Motor Co., No. 93-CA-00970 COA (Ct. App. Miss. June 27, 1995)(not designated for publication and may not be cited pursuant to Miss. R. App. P. 35-B)(holding in case arising from accident in Georgia involving where Georgia resident who purchased car in Mississippi negligence claim accrued in Georgia and was barred by Georgia statute of limitations but that breach of warranty claim accrued in Mississippi and was not yet barred by longer Mississippi statute of limitations). See also Crouch v. General Electric Co., 699 F. Supp. 585 (S.D. Miss. 1988)(applying Mississippi choice-of-law to determine tort claims governed by law of place of accident, North Carolina, but breach of warranty claims governed by law of place of delivery of product, Massachusetts).

97. Miss. Code Ann. 15-1-65.

98. Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1036 (Miss. 1985)(refusing to consider residency acquired after cause of action but before commencement of action), discussed infra note ___.

99. The predecessor statute was construed to borrow a foreign cause of action only in cases in which a defendant moved to the state after the accrual of the cause of action. E.g., Louisville & Mississippi R.R. Transfer Co. v. Long, 159 Miss. 654, 131 So. 84, 88 (Miss. 1930), superseded by Miss. Code Ann. § 15-1-65.

100. See generally infra Part VI(B). The borrowing statute's distinction between residents and nonresidents may more readily survive constitutional challenge than the different limitations periods for enforcing foreign judgments against residents and nonresidents, see supra note ___ and accompanying text. First, there is older authority upholding a similar statute against a privileges and immunities challenge. See Canadian Northern Railway v. Eggen, 252 U.S. 553 (1920)(holding discrimination against nonresidents was not matter of great importance so as to raise privileges and immunities issue as long as nonresident had reasonable time to bring the suit). Cf. Watkins v. Conway, 385 U.S. 188, 191 (1966)(rejecting claim that shorter limitation period for foreign judgments violated equal protection "in a scheme that relies upon the judgment State's view of the validity of its own judgments" but not considering problem of longer period for state resident).

Second, this statute may satisfy the equal protection test. Discouraging forum shopping by out-of-state plaintiffs for claims that accrued out of state may be a legitimate state purpose, or it may be a reasonable means of achieving underlying legitimate purposes such as conserving judicial resources, discouraging litigation of stale claims, and deterring the litigation in Mississippi of claims that have little to do with the state. This justification for the distinction assumes, however, that Mississippi has more interest in its own residents and that its laws favoring them are permitted. But see John Hart Ely, Choice of Law and the State's Interest in Protecting Its Own, 23 Wm. & Mary L. Rev. 173, 186-87 (1981).

101. Miss. Code Ann. § 15-1-63 ("If, after any cause of action has accrued in this state, the person against whom it has accrued be absent from and reside out of the state, the time of his absence shall not be taken as part of the time limited for the commencement of the action, after he shall return.").

102. Sullivan v. Trustmark Nat'l Bank, 653 So. 2d 930 (Miss. 1995).

103. Miss. Code Ann. § 13-1-149:

When any question shall arise as to the law of the United States, or of any other state or territory of the United States, or of the District of Columbia, or of any foreign country, the court shall take notice of such law in the same manner as if the question arose under the law of this state.

See generally Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337 (1936). The statute was read narrowly to hold that courts will not take judicial notice of town ordinances. Naul v. McComb City, 70 Miss. 699, 12 So. 903 (1893). But this may have reflected an older view of judicial notice under which courts declined to take judicial notice of ordinances of towns in Mississippi, state administrative regulations, and even its own trial proceedings in other unrelated cases. Although there has been a trend towards greater recognition of matters that are recorded in accessible public record, there is reason to doubt whether this will extend to certain ordinances or administrative proceedings. As Carolyn Ellis Staton, Mississippi Evidence (3d ed. 1995), explains, "Mississippi case law follows the majority view in refusing to take judicial notice of municipal and local ordinances; Unlike the laws of sister and foreign jurisdictions, local and municipal ordinances are often difficult to locate or verify."

104. Miss. R. Evid. 201:

(c) When Discretionary. A court may take judicial notice, whether requested or not.

(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

The rules further provide that a civil jury be instructed to accept as conclusive any fact judicially noticed. Miss. R. Evid. 201(g). This rule departed from pre-rule state practice where the subject of judicial notice was not conclusive. See Miss. R. Evid. 201 comment (g). In a typical conflict of laws case, however, the jury would not be asked to consider the foreign law as a conclusive "fact." Rather the foreign law would provide the content of instructions on the claims or defenses at issue in the case.

105. In Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454 (Miss. 1983), plaintiffs brought actions for fraud and breach of fiduciary duties arising from alleged joint ventures to operate oil and gas leases in Louisiana. The defendants demurred on the ground that Mississippi lacked subject matter jurisdiction. Since the action was in personam, seeking relief in the form of damages and specific performance, the Chancellor clearly had subject matter jurisdiction.

But the supreme court went out of its way to suggest that the real issue the defendant should have raised was a question of choice of law. 431 So. 2d at 454. Although this issue was raised neither before the trial court nor on appeal, and although the supreme court was unable to resolve the issue because of the absence of an evidentiary record, it nevertheless proceeded to discuss the proper method for deciding choice-of-law issues and suggested that Louisiana law might apply. 431 So. 2d at 458.

The court did, however, significantly advise that because of the fact-specific character of its choice-of-law approach, "it is obvious that a choice of law question may hardly, if ever, be appropriately resolved by this Court on demurrer." 431 So. 2d at 458.

106. See infra, note ___, discussing Justice Robertson's practice in Kountouris v. Varvaris, 476 So. 2d 599 (Miss. 1985). See also Estate of Lawrence Thomas Jefferson, No. 95-CA-00226 COA (Ct. App. Miss. Jan. 30, 1996)(not designated for publication and may not be cited pursuant to Miss. R. App. P. 35-B)(making de novo determination of applicable law when Chancellor wrongly applied most significant relationship test and wrongly determined that usury violated Mississippi public policy). But see Browning v. Shackelford, 196 So. 2d 365, 373-74 (Miss. 1967)(Ethridge, C.J., specially concurring in holding grounded on theory of lex loci because parties had tried case and argued appeal on theory that foreign law applied).

107. Fed. R. Civ. P. 44.1:

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleading or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

"Under the third sentence, the court's determination of an issue of foreign law is to be treated as a ruling on a question of 'law,' not 'fact,' so that appellate review will not be narrowly confined by the 'clearly erroneous' standard. . ." Fed. R. Civ. P. 44.1 advisory committee notes.

108. The Fifth Circuit has observed that "we 'review de novo a district court's determination of state law.'" Allison v. ITE Imperial Corp., 928 F.2d 137, 138-39 (5th Cir. 1991), quoting Salve Regina College v. Russell, 499 U.S. 225 (1991). Accord Gann v. Fruehauf Corp., 52 F.3d 1320, 1324 (5th Cir. 1995). Salve Regina College actually prohibited the prior Fifth Circuit practice of deferring to district court's construction of state law. It would not necessarily prevent an appellate court from characterizing a construction of the content of foreign law as fact and reviewing it accordingly, but such a practice seems precluded by Rule 44.1.

109. Miss. R. Evid. 702 ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."); Fed. R. Evid. 702 (same language). The Mississippi Supreme Court has implied in at least one case that such expert testimony was necessary. Estate of Varvaris, 528 So. 2d 800, 804 (Miss. 1988)(specifically observing absence of expert opinion prior to concluding record was insufficient for court to find content of Greek law).

110. Miss. R. App. P. 20(a):

When it shall appear to the Supreme Court of the United States or to any United States Court of Appeals that there may be involved in any proceeding before it questions or propositions of law of this state which are determinative of all or part of that cause and there are no clear controlling precedents in the decisions of the Mississippi Supreme Court, the federal court may certify such questions or propositions of law of this state to the Mississippi Supreme Court for rendition of a written opinion concerning such questions or propositions of Mississippi law. The Supreme Court may, in its discretion, decline to answer the questions certified to it.

See Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1030-31 (Miss.)(discussing juristic problems presented by predecessor of this rule), answer conformed to, 768 F.2d 718 (5th Cir. 1985).

111. Twenty-nine states, the District of Columbia, and Puerto Rico have adopted the Uniform Certification of Questions of Law Act in some form. The utility of the procedure is limited in that it is cumbersome and is discretionary both in the certifying court and in the court from which a response is requested. Uniform Certification of Questions of Law Act (1967 Act), 12 Uniform Laws Ann. 81-98. See generally Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 J. Legislation 127, 183 (1992); John B. Corr & Ida P. Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411 (1988). A revised version of the process has been proposed. Uniform Certification of Questions of Law [Act] [Rule] (1995), 12 Uniform Laws Ann. 67-79 (1995).

112. E.g, Alabama Great S. R.R. v. Carroll, 97 Ala. 126, 11 So. 803 (1892)("[The fellow servant doctrine] will be presumed in our courts as thus declared to be the common-law of Mississippi, unless the evidence shows a different rule to have been announced by the Supreme Court of the State as being the common-law thereof."); Restatement [First] of Conflict of Laws § 621 ([F]oreign law must be alleged in pleading and proved by evidence."); id. § 622 ("In the absence of evidence, the common law of another common-law state is presumed to be the same as the common law of the forum."); id. § 623 ("There is no presumption that the statutory law of another state is the same as that of the forum.").

113. E.g., Walton v. Arabian Am. Oil Co. 233 F.2d 541 (2d Cir. 1956)(directing verdict in favor of defendant where plaintiff injured in Saudi Arabia failed to offer proof of Saudi law). Professor Reynolds claims that this result could not occur today in light of Federal Rule of Civil Procedure 44.1 (adopted in 1966). William L. Reynolds, What Happens When Parties Fail to Prove Foreign Law?, 48 Mercer L. Rev. 775, 775-76 (1997)

114. E.g., Tidewater Oil Co. v. Waller, 302 F.2d 638 (10th Cir. 1962)(affirming tort judgment for plaintiff injured in Turkey in absence of evidence of Turkish law by presuming Turkey provided remedy for injuries inflicted through defendant's fault but not presuming Turkey had adopted a comprehensive workers compensation scheme identical to forum's that barred tort remedy). See generally Scoles & Hay, supra note ___, § 12.9 at 426-29(discussing judicial approaches where there has been a failure of proof with respect to the content of foreign law).

115. Language from Mitchell v. Craft, 211 So. 2d 509, 512 (1968), may seem to address the issue and to establish a presumption that forum law applies: "We will assume that a case is to be governed by the law of the forum unless it is expressly shown that a different law applies. . . . [A]nd forum law should presumptively apply unless it appears that non-forum contacts are of greater significance. [Citations omitted.]" But this language occurred in the context of a discussion of choice-of-law rules in a case in which the content of foreign law was fully established; the court meant to express a policy preference for forum law rather than a rule of evidence that it applied in the absence of proof to the contrary.

116. It will not even refuse to consider such issues on appeal. See supra note ---, discussing Tideway Oil Programs, Inc., 431 So. 2d at 458.

Another case illustrates the practice. Emanuel Varvaris, an elderly Greek emigrant, gave his son-in-law a power of attorney and the next month this agent purported to convey Greek real property to his wife, the grantor's daughter. But a few months later Varvaris executed a will devising the same property to his son. The court held that defects in the acknowledgment and recording of the power of attorney prevented the agent's conveyance from passing a title superior to that of bona fide purchasers for value. But it held that the trial court erred in holding that the grant was invalid for all purposes under Mississippi law. Kountouris v. Varvaris, 476 So. 2d 599, 604 (Miss. 1985).

Justice Robertson's opinion did not rely exclusively on Mississippi law in reaching the conclusion that the formal defects did not prevent valid conveyance of the Greek property. Although there was no suggestion that Greek law was presented at trial and the parties even requested that the dispute be decided under Mississippi law, 476 So. 2d at 608, Justice Robertson nevertheless insisted that, absent a binding stipulation that Mississippi law governed, id., Mississippi law should not apply to the claims to Greek land unless Mississippi law would apply under Mississippi choice of law principles:

Because the land in issue is outside Mississippi, those rules [Mississippi statutes governing land transfers] have no application except such be mandated by more basic rules of Mississippi law [citations omitted]. Only if the statutes mentioned above would be selected by virtue of our choice of law rules may those statues have anything to do with determining the validity of the conveyance of the [Greek] property or the enforceability of that conveyance as against third persons.

476 So. 2d at 605. To be sure, this reasoning may be read a pure dictum, since the court reversed because of an error in Mississippi law. But Justice Robertson emphasized that upon remand the trial court was required to decide whether Greek law applied, and his opinion included a long advisory discussion of choice-of-law principles that apply in real property disputes. 476 So. 599 at 605-06. He concluded that the judicial task of determining foreign law (regardless of the evidence of foreign law in the record on appeal) was required:

[A]lthough we do not decide here that Greek law applies, we do require that the law of Greece on this issue be ascertained. Indeed, it is elementary to any choice of law question that the contents of the law of the two competing jurisdictions be determined. This is for the rather obvious reason of ascertaining ab initio whether indeed there is a conflict. [Citation and quotation of Miss. Code Ann. § 13-1-149 omitted.]

476 So. 2d at 607.

Notwithstanding the confusing state of the record, Justice Robertson's opinion indicates that in a conflicts case where there is no adequate evidence of the content of foreign law, neither the trial court nor the appellate court should automatically apply Mississippi law.

117. The Chancellor ultimately upheld the conveyance pursuant to the power of attorney and held that the will was invalid because of undue influence. Although the Chancellor's decision rested exclusively on Mississippi law, Matter of Estate of Varvaris, 528 So. 2d 800, 803 (Miss. 1988), the Supreme Court affirmed. In argument before the Supreme Court, the court requested the parties supply it with Greek law. But after studying the Greek legal sources, the court concluded it was unable to determine the effect of Greek law. Accordingly, it deliberately abstained from deciding the Greek legal issues:

The parties have tendered to us extensive extracts from Greek law. These concern Greek property law, law regarding powers of attorney and laws regarding wills and inheritance. The record is devoid, however, of the testimony of any expert witness regarding Greek law and counsel for the parties before us frankly confess that their expertise in Greek law is less than adequate unto the day.

The Court below decided only the issues tendered under Mississippi law, eschewing any venture into Greek law. We have diligently pursued a study of the Greek law tendered in hops that we might do as much as possible to bring this litigation to an end. In the end, discretion counsels that we too stay our hands regarding the Greek law questions. What is before us regarding the content and meaning of Greek law is simply too inadequate to allow us to proceed with confidence. Having resolved affirmatively the Mississippi law issues tendered, we decline to decide the foreign law issues. It's just too Greek for us.

528 So. 2d at 804 (Robertson, J.).

118. Story, supra note ___, § 556 at 935 ("It is universally admitted and established, that the forms of remedies, and the modes of proceeding, and the execution of judgments, are to be regulated solely and exclusively by the laws of the place, where the action is instituted. . ."; Restatement [First] of Conflict of Laws § 585 ("All matters of procedure are governed by the law of the forum.") See generally Scoles & Hay, supra note ___, § 3.8 at 57; Richman & Reynolds, supra note ___, § 57 at 153-55; Walter Wheeler Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L.J. 333 (1933).

119. The Second Restatement explicitly avoids employing the distinction between substance and procedure to decide cases, requiring a consideration of the underlying policies and purposes of the rules in conflict. Restatement (Second) of Conflict of Laws § 122, comment b. See also Scoles & Hay, supra note ___, § 3.8 at 58; Richman & Reynolds, supra note ___, § 58 at 155.

120. Ford v. State Farm Insurance Co., 625 So. 2d 792, 793 (Miss. 1993)("Mississippi applies its own procedural law to actions filed in the courts of this state."); Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So. 2d 908 (Miss. 1993)("In sum, if the enforcement of the contract involves a substantive right, then New York law should apply. If enforcement of the contract involves a remedial or procedural right, then Mississippi law should apply."); Interstate Life & Accident Co. v. Pannell, 169 Miss. 50, 59, 152 So. 635, 638 (1934)("Under the law, the substantive rights of the parties to this cause are governed by the laws of [Tennessee] and not by the laws of Mississippi. . . . The procedure, however, including the remedies and rules of evidence, is governed by the law of the forum."). Mississippi cases holding statutes of limitations are governed by forum law (absent the borrowing statute), see infra cases in notes ---, do so on the traditional ground that statutes of limitations are procedural. See generally Newman, supra note ___, at 747-53.

121. Story recognized this was the real issue presented by the analytic classification, Story, supra note ___, § 563 at 944, and gave many examples, id. §§ 565-83 at 944-80.

122. Whether something is procedural for conflict of laws purposes is completely unrelated to whether it may be deemed procedural for other purposes such under an Erie analysis in federal court. Cases and tests finding some issue procedural in a different contexts are irrelevant. Thus, for example, statutes of limitations are procedural under Mississippi conflicts of law rules but "substantive" for purposes of Erie, regardless of how they are characterized by the state, Guaranty Trust Co. v. York, 326 U.S. 99 (1945). So, too, a state's choice of laws rules will apply in federal court as "substantive" for purposes of Erie, even when the state characterizes the issue as procedural, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), Sampson v. Channell, 110 F.2d 754 (1st Cir. 1940).

123. McDaniel v. Ritter, 556 So. 2d 303, 314 (Miss. 1989)(applying Mississippi rules of civil procedure to burden of pleading workers compensation defense available under Tennessee workers compensation scheme); accord Restatement (Second) of Conflict of Laws § 592.

124. "And perhaps it may be stated as a general truth, that the admission of evidence and the rules of evidence are rather matters of procedure, than matters attaching to the rights and titles of parties. . .[But proceeding to discuss problems with the generalization]" Story, supra note ___, § 634 at 1028

125. Mississippi law determines the rules of evidence even in cases where foreign law governs other issues. For example, in one case Alabama law applied to the substantive issue of the guest statute defense while Mississippi law provided the statute of limitations, Vick v. Cochran, 316 So. 2d 242, 246 (Miss. 1975). But the court proceeded to resolve a series of evidentiary issues under Mississippi law, including: competence of medical expert deposition, id. at 250, scope of cross examination and impeachment, id. at 250-51. The court did not specifically decide that Mississippi rather than foreign law governed these evidentiary issues, but it applied Mississippi law presumably because it never occurred to either parties or the court that such issues would not be governed by forum law.

126. Cox, 619 So. 2d at 914; see also Valley Forge Ins. Co. v. Strickland, 620 So. 2d 535, 542 (Miss. 1993)(holding that fees and expenses were properly awarded in a case where Mississippi law was applied to permit punitive damages). The court also affirmed an award of prejudgment interest, 620 So. 2d at 542, but it is not clear that any party had suggested that such interest was unavailable under any other law; moreover, the court had previously ruled that Mississippi law applied to the substantive tort issues. Accordingly, the opinion provides no guidance as to whether prejudgment interest is substantive or procedural. Cf. Barnes v. Confidential Party, 628 So. 2d 283, 291 (Miss. 1993)(all parties assumed in argument that availability of fees was purely matter of Mississippi law), McCain v. Cox, 531 F. Supp. 771, 783 (N.D. Miss.)(Keady, C.J.)(denying prejudgment interest under Mississippi case law but without explaining that Mississippi case applied because issue was procedural or because it was substantive and Mississippi law governed substantive issue under the facts), aff'd without opinion, 692 F.2d 755 (5th Cir. 1982).

127. McDaniel v. Ritter, 556 So. 2d 303, 314 (Miss. 1989)(applying Mississippi rules of civil procedure to burden of proving workers compensation defense available under Tennessee workers compensation scheme). See also U.S. Fidelity & Guar. Co. v. Yost, 183 Miss. 65, 183 So. 260 (Miss. 1938)(applying Mississippi law to the quantity of proof needed to establish a waiver or forfeiture in a cause of action arising in Tennessee):

It cannot be disputed that the rules of substantive law of a state where a cause of action [arose] are to be applied by the court of the forum, but the quantum of proof required is governed by the law of the forum. . . .

Applying our own rules as to the quantum of proof requisite to establish a waiver, we could not be controlled by the opinion of another court which applies a different rule of evidence thereasto [sic].

183 So. 263, 264. Maryland Cas. Co. v. Williams, 377 F.2d 389, 394 (5th Cir. 1967)(applying Mississippi conflicts of law rules):

The general and prevailing rule is that presumptions, when examined as to whether they are procedural or substantive in nature for choice of law purposes, are matters of procedure. In this context presumptions are closely akin to burden of proof. Thus, the law of the forum governs proof of facts, as well as presumptions and inferences to be drawn from the evidence.

The court noted two exceptions to this general rule: conclusive or irrebuttable presumptions are substantive, 377 F.2d at 394-95, as is a built-in presumption that is created as part of and in aid of the enforcement of a right, 377 F.2d at 395. See also Browning v. Shackelford, 196 So. 2d 365, 368 (Miss. 1968)("[P]rocedural law of Mississippi is applicable in the trial of the case as to the weight and sufficiency of the evidence."); accord Wright v. Jacobs, 228 Miss. 641, 89 So. 2d 708, 709 (1956)("[P]rocedural and evidential law of Mississippi is applicable to the trial of the case, and to the wight of a determination of facts by the chancery court.").

128. Ford v. State Farm Ins. Co., 625 So. 2d at 795 (dismissing claim against insurer brought under Louisiana direct action statute). This holding and its reasoning are in keeping with the traditionally broad definition of remedy and procedure. But the same result was reached by a court that characterized a direct action statute as substantive but nevertheless rejected its application on the ground that it offended the forum's strong public policy. See also McNeal v. Administrator, 254 So. 2d 521, 524-25 (1971), Goodin v. Gulf Coast Oil Co., 241 Miss. 862, 133 So. 2d 623, 624 (1961), Cook v. State Farm Mut. Ins. Co., 241 Miss. 371, 128 So. 2d 363 (1961)(holding direct action statute procedural). Marchlik v. Coronet Ins. Co., 40 Ill. 2d 327, 239 N.E.2d 799 (1968)(holding that claim under Wisconsin direct action statute "is substantive and, as such, is entitled to comity, provided there is no compelling public policy of this State to the contrary" but finding Illinois public policy precludes actions under the statute). But see Burkett v. Globe Indem. Co., 181 So. 316, 319 (1938)(holding Louisiana direct action statute substantive and recognizing claim brought under it), overruled by McArthur v. Maryland Cas. Co., 184 Miss. 663, 186 So. 305 (1939), criticized in L.A. Wyatt, Casenote, Conflict of Laws--Law Governing Tort Liability--Is Right to Direct Suit Against Insurer for Tort Committed by Insured Question of Substance of Procedure?, 11 Miss. L.J. 234-37 (1938).

129. McNeal v. Administrator, 254 So. 2d 521, 522-24 (Miss. 1971). See generally John A. Travis, III, Recent Decisions--Conflict of Laws--Interspousal Torts--Law to Govern, 35 Miss. L.J. 308-10 (1964)(criticizing decisions from other states holding that spousal immunity is governed by law of the place of the wrong and concluding "[t]here is little, if any, reason for a state which has adopted the better and more modern rule to give effect to the absolute interspousal tort immunity as observed by the foreign state, in place of its own law, especially when it is the state most interested in the rights of the parties.").

130. Barnes v. Confidential Party, 628 So. 2d 283, 288 (Miss. 1993)(applying Georgia law in deposition conducted in connection with Georgia divorce proceedings to prevent divulging information admissible under Mississippi law).

131. This is the holding of a federal court applying Mississippi choice-of-law rules, but in finding that the Mississippi law of privilege governed, the court observed that this would have been the same result if the issue had been characterized as procedural. Hyde Constr. Co. v. Koehring Co., 455 F.2d 337, 341 n.3 (5th Cir. 1972). Communications in issue were made by a Wisconsin corporation's in house counsel to its trial counsel concerning litigation in Mississippi and Oklahoma, which litigation was itself an outgrowth of litigation initiated in Mississippi, and the plaintiffs were Mississippi residents. In finding that Mississippi law permitted disclosure of numerous communications, the court did not appear to give special weight to or even identify the exact place where the communications were made.

The treatment of privilege as "substantive" results in a different treatment than the Restatement, which allows admission of a communication over a claim of privilege if it is admissible under either the law of the forum or the law of the place with the most significant relationship "with the communication." Restatement (Second) of Conflict of Laws § 139 (1988 revisions).

132. Valley Forge Ins. Co. v. Strickland, 620 So. 2d 535, 538-39 (Miss. 1993)(applying Mississippi punitive damages law when tortious conduct occurred in Mississippi), citing Restatement (Second) of Conflict of Laws § 171.

133. Cox, 619 So. 2d at 912 ("Under Mississippi law, the law governing construction or interpretation of a contract in order to enforce the agreement is substantive for conflict of law purposes."), Maryland Cas. Co. v. Williams, 377 F.2d 389, 393 (5th Cir. 1967)("Mississippi characterizes law governing the construction or interpretation of a contract as substantive, but will apply its own fundamental rules of evidence and procedure in any event."), citing Nationwide Mut. Insurance Co. v. Tillman, 249 Miss. 141, 161 So. 2d 604, 613 (1964), United States Fidelity & Guar. Co. v. Yost, 183 Miss. 65, 183 So. 260, 263, 185 So. 564 (1938), Interstate Life & Accident Co. v. Pannell, 169 Miss. 50, 152 So. 635, 638 (1934).

134. Weintraub exemplifies the assumption that classifying something as a matter of procedure advances only a convenience interest of the forum: "If it would be very difficult for local judges and lawyers to adjust to the application of the foreign rule and if it is unlikely that the outcome will be altered by applications of the forum's rule, the forum's rule is properly labeled as 'procedural' for conflict of laws purposes and correctly applied without further analysis." Russell J. Weintraub, Commentary on the Conflict of Laws § 3.2C1 at 53 (3d ed. 1986). But such a functional classification is deeply problematic. First, the cases--at least in Mississippi--neither rely on such a distinction nor reveal in their holdings the operation of such an underlying rationale. Second, the classification of matters as procedural did not, historically, indicate that the forum had little interest (other than convenience) in the matters; on the contrary, matters of remedy and procedure were matters of the form in which the forum state was deemed to have particularly strong public interest. See Story, supra note ___, § 557 at 936-37.

135. Restatement [First] of Conflict of Laws § 588. Although the Second Restatement avoids the term "procedure," it nevertheless provides that forum law governs a number of things traditionally characterized as procedural. Restatement (Second) of Conflict of Laws §§ 122-26, 137-38 (parties, service, pleading, motions, burdens of proof, presumptions, counterclaims, enforcement of judgment, exemptions from execution, proof of foreign law, evidence).

136. Id. § 591.

137. Id. § 594.

138. Id. § 596.

139. Id. § 600.

140. Id. § 606 ("If a statute of the forum limits the amount which in any action of a certain class may be recovered in its courts, no greater amount can be recovered though under the law of the state which created the cause of action, a greater recovery would be justified or required."). This provision is problematic. Inconsistent with the traditional rule that "[t]he measure of damages for a tort is determined by the law of the place of wrong," id. § 412, it has been questioned in cases, e.g., Davenport v. Webb, 11 N.Y.2d 392, 230 N.Y.S.2d 17, 19, 183 N.E.2d 902, 904 (1962). A federal court applying Mississippi choice-of-law rules rejected the argument that a foreign limit on noneconomic damages in medical malpractice cases violated Mississippi public policy. Rieger v. Group Health Ass'n, 851 F. Supp. 788, 791-93 (N.D. Miss. 1994)(Davidson, J.).

141. Restatement [First] of Conflict of Laws § 390.

142. Id. § 391.

143. Id. § 412.

144. Id. § 419.

145. Id. § 420.

146. Restatement [First] of Conflict of Laws § 599; Restatement (Second) of Conflict of Laws § 140. See Spragins v. Louise Plantation, Inc., 391 So. 2d 97, 100-01 (Miss. 1980)(applying Arkansas parol evidence rule in case involving land sale contract for Arkansas land in which Arkansas law applied).

147. There are two different statutes of frauds that may present choice-of-law problems in Mississippi. The general statute of frauds provides:

Any action shall not be brought whereby to charge a defendant or other party:

(a) upon an special promise to answer for the debt or default or miscarriage of another person;\

(b) upon any agreement made upon consideration of marriage, mutual promise to marry excepted;

(c) upon any contract for the sale of lands, tenements, or hereditaments; or the making of any lease thereof for a longer term than one year;

(d) upon any agreement which is not to be performed within the space of fifteen months from the making thereof; of

(e) upon any special promise by an executor or administrator to answer any debt or damage out of his own estate;

unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writings, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing.

Miss. Code Ann. § 15-3-1. Mississippi has also enacted a version of the statute of frauds contained in the Uniform Commercial Code:

(1) Except as otherwise provided in this section, a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten (10) days after it is received.

(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable

(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for the procurement; or

(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or

(c) with respect to goods for which payment has been made and accepted or which have been received and accepted [cross-reference omitted].

Miss. Code Ann. § 75-2-201. This statute is interpreted to complement rather than provide exceptions to the general statute of frauds. See H & W Industries, Inc. v. Formosa Plastics Corp., 687 F. Supp. 271 (N.D. Miss.), rev'd on other grounds, 860 F.2d 172 (5th Cir. 1988).

148. Restatement [First] of Conflict of Laws § 602 ("If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."). Comment a explains:

a. Statute of frauds. If the statute of frauds of the forum requires a written agreement as a condition of bringing action on a contract of a certain sort, no action can be maintained on a foreign oral agreement even if it complies with the law of the place of contracting. If the statute of frauds of the forum affects only the admissibility of certain evidence, the action may be maintained and the plaintiff may recover if he can establish his case by other admissible evidence [cross-reference omitted].

149. Id. comment b:

b. The statute of frauds of the place of contracting is in some states interpreted as creating a condition to the existence of the contract. In that case, the agreement must be in writing though no writing is required by the law of the forum [cross-reference omitted].

150. See generally Water R. Bridgforth, Comment, The Mississippi Statute of Frauds in the Conflict of Laws, 14 Miss. L.J. 256, 260 (1942)(discussing Mississippi cases and concluding, "From these cases it would seem, then, that Mississippi regards the statute of frauds as a rule of substantive law.").

This approach seems consistent with recent treatments of the statute of frauds in other contexts, where the Mississippi Supreme Court has opined that a party may waive the protections of the statute of frauds, Canizaro v. Mobile Communications Corp. of Am., 655 So. 2d 25, rehearing denied, 1995 Miss LEXIS 319 (Miss. 1995), that the purpose of the statute is to prevent frauds and it merely prescribes the form of part of the evidence and can be supplemented by oral testimony, Putt v. Corinth, 579 So. 2d 534 (Miss. 1991), and that a lost memorandum can be proved by oral testimony, Williams v. Evans, 547 So. 2d 54 (Miss. 1989). Similarly, the Uniform Commercial Code version of the statute of frauds is evidentiary because it allows proof when a party admits the contract. Miss. Code Ann. § 75-2-201.

151. Of course, the legislature, could provide that Mississippi formal requirements govern all claims. See generally Restatement (Second) of Conflict of Laws § 141 comment c. This raises a problem whether, in cases governed by the Mississippi Commercial Code under its statutory choice-of-law provision, see infra note ---, the Code's statute of frauds automatically applies on the theory that the legislature intended it to govern.

152. Restatement (Second) of Conflict of Laws § 141 ("Whether a contract must be in writing, or evidenced by a writing, in order to be enforceable is determined by the law selected by application of the rules [that determine what choice of law governs in contract]."). Although the Second Restatement elsewhere derides the analytic distinction between substantive and procedural issues, it justifies its rule by observing that "arguments in favor of a substantive classification" of statutes of frauds "are the stronger and the more persuasive." Id comment b. See generally Richman & Reynolds, supra note ___, § 57 at 155 ("Although most evidentiary questions are controlled by forum law, some are considered substantive. Among this last group are questions of privilege, the parol evidence rule, and problems involving that statute of frauds."); Scoles & Hay, supra note ___, § 3.8 at 57-58 ("Modern American law predominantly characterizes the Statute of Frauds as substantive."). This modern characterization returns the law to the state it was at Story's time. See Story, supra note ___, § 262 at 397-98, § 631 at 1024 (the formal requirements, including statutes of frauds, are provided by the law of the place of contracting), except for contract affecting interest in land, which must comply with formal requirements of place where land it, id. § 435 at 729.

153. The Mississippi Uniform Commercial Code would typically apply, absent a choice of some other jurisdiction's law, so long as the transaction bears a reasonable relationship to Mississippi. See infra notes ___ to ___ and accompanying text.

154. Justice Joseph Story was both the founder of conflict of laws, publishing the first edition of his treatise in 1834, and one of the chief architects of a transcendental and evolutionary vision of common law that was incorporated into several areas of law, including the practice of federal common law under the doctrine of Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)(Story, J.), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)(Brandeis, J.)("There is no federal general common law."), and federal admiralty law, see generally Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 20-22, 46 (2d ed. 1975);R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 104-05 (1985)(discussing Story's contributions to development of federal law of admiralty).

155. See, e.g., G. Edward White, Tort Law in America: An Intellectual History 12-19 (1985)(summarizing the rise of a modern view of torts dominated by the principle of negligence).

156. This approach dominated the treatises, e.g., Joseph Beale, A Treatise on the Conflict of Laws (1935), and characterized the first Restatement of Conflict of Laws (1934).

157. G. Edward White emphasizes the conflict between the descriptive and classificatory aims of the American Law Institute's Restatement projects in the 1930s and the reality of the practice of the A.L.I. as an elite group of jurists that worked to articulate an ideal and academic vision of law and to reduce the uncertainty inherent in actual judicial decisionmaking. See G. Edward White, The American Law Institute and the Triumph of Modernist Jurisprudence, 15 L.& Hist. Rev. 1, 21 (1997). He points out that the Restatement project not only acknowledged legal uncertainty as its stimulus but that the Restatements in practice accommodated more legal uncertainty that Langdell, whose approach had been simply to deny uncertainty by rejecting it as error when cases failed to abide by the supposedly right rules. Id.

158. The most notorious examples of vested rights theory of law were the substantive due process cases.

159. E.g., Shaw v. Postal Tel. Cable Co., 79 Miss. 670, 31 So. 222 (1902)(validity of contract governed by the law of the place of the contract), id., 31 So. at 224 (Whitfield, C.J. dissenting)("[A] contract valid by the statute law of the state where made is valid everywhere. . .").

Although the Restatement strongly preferred the law of the place of contracting (understood as the place of execution of the contract), for most matters e.g., Restatement of Conflict of Laws §§ 332-34, except details of performance, id. § 358, jurisdictions were traditionally much vexed by the problem of what law to apply in contract. In the mid 1800s Mississippi apparently applied the law of the place of performance to all matters, but by the early 1900s it applied the law of the state of making to issues other than adequacy of performance. See generally David E. Crawley, Jr., Comment, Conflict of Laws in Mississippi as to Contracts, 14 Miss. L.J. 240, 244 (1942). But the cases were never entirely consistent and relied in part on the place of making or performance as evidence of the law intended to apply by the parties. See id. at 250 (discussing cases).

160. E.g., Covington v. Carley, 197 Miss. 535, 19 So. 2d 817 (1944)(applying Alabama's guest statute, observing "The injury occurred in Alabama, and the law applicable to the case if found in [the Alabama guest statute]."), Montgomery & Atlanta Motor Freight Lines, Inc. v. Morris, 193 Miss. 211, 7 So. 2d 826, 827 ("The collision and death took place in the State of Louisiana, therefore the rights of the parties are governed by the laws of that state."), suggestion of error overruled, 193 Miss. 223, 8 So. 2d 502 (1942), Welch v. Kroger Grocery Co., 180 Miss. 89, 177 So. 41, 42 (1937)("Our court has frequently held, and we believe it is the rule everywhere, that actions in tort are governed by the law of the place where the injury occurred. . ."); Chicago, St. Louis & N.O. Ry. Co. v. Doyle, 60 Miss. 977 (1883). See generally Restatement of Conflict of Laws §§ 377-79.

161. Various theoretical schools such as legal realism and sociological jurisprudence shared a functional vision of law and a distaste for formalism. Legal realism is usually explained as a reaction against legal formalism, see, e.g., Richman & Reynolds, supra note ___, § 54 at 147, but the actual chronology of developments in Conflict of Laws reveals that legal realism and high formalism emerged at about the same time. Influential articles critical of formalism in conflicts theory appeared in the 1920s and 1930s. David Cavers, A Critique of the Choice-of-Law Problems, 47 Harv. L. Rev. 173 (1933), Walter Wheeler Cook, Jurisdiction of Sovereign States and the Conflict of Laws, 31 Colum. L. Rev. 368 (1931), Hessel E. Yntema, The Hornbook Method and the Conflict of Laws, 37 Yale L.J. 468, Walter Wheeler Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale L.J. 457 (1924), Ernest G. Lorenzen, Territoriality, Public Policy, and the Conflict of Laws, 43 Yale L.J. 736 (1924), The roots of the functional approach to law in America go back at least to Oliver Wendell Holmes, The Common Law (1881). Holmes himself challenged formalist assumptions behind federal general common law, see Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518, ___ (1928)(Holmes, J., dissenting), but he espoused more conventional formalist doctrine in his international conflicts opinions, see Slater v. Mexican national Railraod Co., 194 U.S. 120, 126 (1904). It thus seems most accurate to understand both formalism and various anti-formalist theories as symbiotic movements in modernist legal theory.

162. Brainerd Currie, Notes on Methods and Objectives in the Conflict of Laws, 1959 Duke L.J. 178.

163. See generally Olger C. Twyner, III, A Survey and Analysis of Comparative Fault in Mississippi, 52 Miss. L.J. 563, 590-91 (1982)(summarizing modern choice-of-law theories).

164. Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), Haag v. Barnes, 9 N.Y.2d 554, 216 N.Y.S.2d 65, 175 N.E.2d 441 (1961), Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954). See generally Michael B. Taylor, Note, Conflict of Laws--Applicable Law for Multi-State Tort Actions, 37 Miss. L.J. 157-59 (1965)(discussing movement away from traditional territorial choice-of-law rules). Although these cases are almost always viewed as revealing a distinct trend in conflict of laws in United States jurisdictions, they closely paralleled other international trends towards the extraterritorial application of forum law. E.g., M.M. Boguslavskii, Private International Law: The Soviet Approach 160-61 (D. Winter & W. Simons trans. 1988)("In those cases where a Soviet court or arbitral tribunal considers claims arising out of torts committed abroad, Soviet courts also must proceed from the general conditions of lex loci delicti by applying the legislation of the place of the tort. . . .At the same time, the Soviet doctrine of private international law has put in a special position those instances where a Soviet citizen abroad inflicts harm upon the Soviet state, its organizations, or other Soviet citizens. It is provided in current Soviet law (Art. 126-4, para. 2 Principles) that 'the rights and duties of parties in obligations arising as a consequence of inflicting harm abroad is determined according to Soviet law where the parties are Soviet citizens or Soviet organizations.'").

165. Browning v. Shackelford, 196 So. 2d 365, 372 (Miss. 1967) applied the Alabama guest statute but observed that there had been "drastic repudiation" of the doctrine of lex loci delicti among both courts and scholars during the previous decade. It expressly signaled its willingness to consider a challenge to the rule in an appropriate case: "In a proper case, under proper facts, and at a proper time, the intrinsic merits and demerits of the [newer approach] can be considered."

Chief Justice Ethridge specially concurred expressing more forcefully his disinclination to adhere to the rule of lex loci delicti. "The old rule that the governing law was invariably that of the place where the injury occurred is today almost wholly discredited. . ." 196 So. 2d 365. His concurring opinion quoted in full relevant provisions from the Restatement Second and advanced a number of arguments that he would repeat the next year in Mitchell v. Craft, see infra notes ___ to ___ and accompanying text. Justice Rodgers, who first announced the adoption of the Restatement Second approach the next year, see infra, note ___, also subscribed to the specially concurring opinion.

166. In Craig v. Columbus Compress & Warehouse Co., 210 So. 2d 645 (Miss. 1968), the appellant argued that Tennessee law should apply in a dispute over warehouse receipts when the receipts were located in Tennessee even though the bales of cotton were located in Mississippi. In affirming the trial court's application of Mississippi law, Justice Rodgers opined that Mississippi law applied under the tradition rule that validity of transfers of interests in personal property is governed by the law of the place where the personal property was located at the time of the transfer, 210 So. 2d at 649. But Justice Rodgers also considered newer approaches and concluded that they led to the same result:

In recent years there is a trend in some state and federal courts to adopt the "center of gravity doctrine." This doctrine is a rule whereby the court trying the action applies the law of the place which has the most significant relationship to the event and parties, or which, because of the relationship or contact with the event and parties, has the greatest concern with the specific issues with respect to the liabilities and rights of the parties to the litigation. 15 C.J.S. Conflict of Laws § 8(2) (1967).

In the instant case, all of the interested parties are within the borders of Mississippi. The warehouse receipts are Mississippi contracts. The theft of these receipts occurred within the state. The property was stored in Mississippi. The cotton was released under Mississippi law on duplicate receipts. The cotton was grown, harvested and baled in Mississippi. In fact, everything with reference to the transaction occurred within this state, except the sale of stolen warehouse receipts.

210 So. 2d at 649.

Of course, Justice Rodger's statements about the newer trend was pure dictum since the case was decided on traditional choice-of-laws rules. But less than one month later, the court released its opinion in Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968), a wrongful death action arising from a two-car collision in Louisiana in which two Mississippi domiciliaries were killed. Mississippi had enacted comparative negligence but Louisiana retained common law contributory negligence. The circuit court gave peremptory instructions, applying Louisiana's contributory negligence. The Mississippi Supreme Court reversed. Justice Ethridge announced,

We modify the previously existing rule in this jurisdiction,, which applied invariably the law of the place of injury, and hold that under the factual situation existing in this case, the most substantial relationships of the parties and the dominant interest of the forum require application of Mississippi law, in accordance with the principles summarized in the Restatement (Second) Conflict of Laws sections 175, 145, 164 and 6 (Proposed Official Draft, Adopted May 24, 1968).

211 So. 2d at 510. See generally Olger C. Twyner, III, supra note ___, at 591-93 (discussing Mitchell).

167.

We will assume that a case is to be governed by the law of the forum unless it is expressly shown that a different law applies, and in case of doubt, a court will naturally prefer the laws of its own state. Moreover, a forum state will not favor application of a rule of law repugnant to its won purposes, and forum law should presumptively apply unless it appears that non-forum contacts are of greater significance. [Citations omitted.]

Mitchell v. Craft, 211 So. 2d at 512.

168. The court explained the only merits of the traditional rule as certainty, predictability, and ease of application. 211 So. 2d at 513.

169. The court cited in footnote a dozen law review articles published from 1952 to 1967. Mitchell v. Craft, 211 So. 2d at 513 n.3. Justice Ethridge's opinion devoted special attention to the Better Rule theory promoted by Leflar.

In a major contribution in this field, Robert Leflar has synthesized and analyzed five principal, choice-influencing considerations. [Citations omitted.]

211 So. 2d at 514. Justice Ethridge proceeded to apply Leflar's five considerations. He discounted the first (predictability), because it pertains to contracts, and the second (maintenance of interstate order), because neither state would be affected by the court's decision. He found that the third (simplification of the judicial task) did not prevent application of forum rules that were simple and easy to apply. The fourth (advancement of government interests) dictated application of Mississippi's comparative negligence standard in cases involving Mississippi domiciliaries. 211 So. 2d at 514. Justice Ethridge found that Leflar's fifth consideration (application of the better law) likewise indicated application of Mississippi law:

Finally, an important consideration is application of the better rule of law. We believe in our own law in this instance. Comparative negligence, although utilized in diverse ways in only seven states, is a faire and more economically equitable standard of liability than that of the common-law rule of contributory negligence.

211 So. 2d at 514. Justice Ethridge did not appear to appreciate that Leflar's approach was not necessarily consistent with the approach of the Second Restatement.

170. 211 So. 2d at 515, quoting Restatement (Second) of Conflict of Laws §§ 6, 145, 164, 175 (Proposed Official Draft, adopted May 24, 1968). The court also quoted (without citing) section 146 in concluding:

The above conflict-of-law or choice-of-law rules which we adopt require only a modification and not an overruling of earlier cases applying the law of the state where the injury occurred. Ordinarily, the local law of the state where the injury occurred will determine the rights and liabilities of the parties, "unless with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which even the local law of the other state will be applied."

211 So. 2d at 516, quoting (with emphasis added, ellipses and citation omitted) Restatement (Second) of Conflict of Laws § 146.

171. As of December 31, 1995, 25 states had adopted the Restatement Second in resolving choice-of-law problems in either torts or contracts. See generally, Symeon C. Symeonides, Choice of Law in the American Courts in 1995: A Year in Review, 44 Am. J. of Comp. L. 193-203 (1996). Only 12 states retain the traditional lex loci delicti or lex loci contractus rule, id. See also Patrick J. Borchers, The Choice-of-Law Revolution: An Empirical Study, 49 Wash. & Lee L. Rev. 357, 37-72 (1992)(listing 15 state that followed the traditional approach).

172. Some states have adopted the Restatement approach only for torts; others have adopted it only for contracts. Id.

173. It is not overstatement to describe the change inaugurate by the opinion in Mitchell v. Craft a revolution. It was unprecedented in Mississippi cases. Justice Ethridge claimed that "in other areas of conflicts law this Court has examined choice-influencing considerations and the most significant relationships of the occurrence and the parties in order to determine the choice of applicable law." 211 So. 2d at 515. Nevertheless, the only cases he identified in support of his claim were in the area of workers compensation and provided scant authority.

Burnham Van Service, Inc. v. Dependents of Moore, 250 Miss. 165, 164 So. 2d 733 (1964) held that Mississippi workers compensation death benefits applied in claim brought by dependents of Mississippi employee who died outside state. But the court relied on the fact that the Mississippi workers compensation act explicitly provided for its extraterritorial application to in-state employees injured during temporary absence for the state. 164 So. 2d at 741. This was not a departure from traditional choice-of-law rules; on the contrary, it exemplified one of the black letter rules of the First Restatement. Restatement of Conflict of Laws § 398 ("A workman who enters into a contract of employment in a state in which a Workmen's Compensation Act is in force can recover compensation under the Act in that state for bodily harm arising out and in the course of the employment, although the harm was suffered in another state. . .").

In Mandle v. Kelly, 229, Miss. 327 90 So. 2d 645 (1956), the court held that the Mississippi workers compensation act did not apply to a Georgia employee injured during temporary presence in Mississippi. But the court based that decision on the employee's contract executed in Georgia under which the employer was released from any compensation law other than Georgia's. 90 So. 2d at 650. The court also based its decision on the incorrect idea that it was constitutionally prohibited from applying the Mississippi act. 90 So. 2d at 650. Cf. Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954)(holding that due process did not require a state to honor a non-action clause, valid under state law where executed, when the state had an interest in safeguarding the rights of persons injured there); Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493 (1939)(holding that full faith and credit did not prohibit state where accident occurred from applying its own workers compensation law).

Neither of these cases supported Justice's Ethridge's claim that Mississippi had departed from traditional choice-of-law rules in other areas of law.

174. White v. Malone Properties, Inc., 494 So. 2d 576, 578 (Miss. 1986) held that Louisiana law applied and that Louisiana workers compensation provided the exclusive remedy in an action brought by a Mississippi resident permanently working in Louisiana. Characterizing the Louisiana's limitations period as substantive, moreover, the court held that the workers compensation remedy was time barred. The court relied on two pre-1968 cases as well as on the Restatement Second approach.

Justice Robertson concurred in the holding but criticized the reasoning of the majority:

Reliance upon [pre-1968 caselaw] in a 1986 choice of law case is about as sound as reliance upon Ptolemaic astronomy after Copernicus. It is like arguing for a post-Einstein resurrection of Euclidian geometry because in a given instance Euclidian principles produce a satisfactory result. To use a more lawyer-like metaphor, what the majority does today is analogous to a federal court in a 1986 diversity case relying upon pre-Erie federal precedents to furnish the rule of decision on a question of state law. In such a case I doubt any knowledgeable lawyer would suggest that, because the pre-Erie case reached a consistent result, that case was authoritative precedent in the post-Erie era.

494 So. 2d at 579.

Justice Robertson's criticism of the majority, joined by Justice, Prather seems entirely justified. Although it may have been convenient to rely on cases directly on point, especially when they supported the result reached under the court's current approach, the practice sends a confused signal to the bar.

See also Estate of Lawrence Thomas Jefferson, No. 95-CA-00226 COA, slip op. at 6-7 (Ct. App. Miss. Jan. 30, 1996)(not designated for publication and may not be cited pursuant to Miss. R. App. P. 35-B)(citing and relying on three pre-Mitchell cases for conclusion that Alaska law governs promissory note executed and payable in Alaska notwithstanding Chancellor's finding that most significant relationship of contract was in Mississippi due to Mississippi residence of payor and fact that note was secured by Mississippi real property).

175. Justice Robertson wrote in his concurrence:

This Court's adoption of the center of gravity test [citations omitted] represented a major reformulation of choice of law doctrine in this state. The traditional rule of lex loci--the law of the place--was effectively abandoned. Since that time we have employed the center of gravity analysis in every choice of law case coming before this Court [citations omitted]. For this reason, pre-Mitchell and pre-Craig cases, no matter how similar to a given case under consideration on their fact or on the questions of law presented, are of little or no precedential value and should be cited an relied upon with great caution.

White v. Malone Properties, Inc, 494 So. 2d at 580.

176. See, e.g., Price v. Litton Sys., Inc. 784 F.2d 600, 606-08 (5th Cir. 1986)(concluding that Mississippi courts would apply separate choice-of-law analysis to breach of warranty theory). For cases applying different states' limitations due to different choice-of-law rules applicable to different claims, see supra note ___.

177. See Restatement (Second) of Conflict of Laws § 222:

The interests of the parties in a thing are determined depending upon the circumstances, either by the "law" or by the "local law" of the state which, with respect to the particular issue, has the most significant relationship to the thing and the parties under the principles stated in § 6.

178. Restatement [First] of Conflict of Laws §§ 211, 214, 218, 220, 221.

179. Kountouris v. Varvaris, 476 So. 2d 599, 606 (Miss. 1985)(opining that formal defects in power of attorney that prevented it from conveying real property in Mississippi would not necessarily prevent it from conveying real property in Greece). The opinion relied on the Restatement Second.

Validity and Effect of Conveyance of Interest in Land

(1) Whether a conveyance transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the court of the situs.

(2) These courts would usually apply their own local law in determining such questions.

476 So. 2d at 606, quoting Restatement (Second) of Conflict of Laws § 223. It also suggested that the construction of an instrument of conveyance would be governed either by the law indicated in the instrument or by the law of the place of the land:

Construction of Instrument of Conveyance

(1) An instrument of conveyance of an interest in land is construed in accordance with the rules of construction of the state designated for this purpose in the instrument.

(2) In the absence of such a designation the instrument is construed in accordance with the rules of construction that would be applied by the courts of the situs.

476 So. 2d at 606, quoting Restatement (Second) of Conflict of Laws § 224. Cf. Anderson v. Sonat Exploration Co., 523 So. 2d 1024, 1027 (Miss. 1988)("The fact that the affected land is in Louisiana may make the law of that state controlling under our 'center of gravity' text. . .but does not, of itself, defeat the jurisdiction of our courts.").

180. In Spragins v. Louise Plantation, Inc., 391 So. 2d 97 (Miss. 1980), the court held that Arkansas law applied in an action for specific performance on a contract for sale land between Mississippi residents when the real property was located in Arkansas but did not base its conclusion exclusively on the location of the land. On the contrary, it referred to its prior adoption of the center of gravity or most significant relationship test, quoted section six from the Restatement Second, and concluded:

Although the location of the land is not the overriding consideration, that coupled with the fact that all of the contracts and brokerage agreements were executed and signed in Arkansas gives Arkansas more of an interest in the case. The parties, in addition to the foregoing reasons, probably expected Arkansas law to be applied especially since they failed to include a choice of law clause in any of the documents and because the land deeds had to be recorded in Arkansas.

391 So. 2d at 100.

181. Tideway Oil Programs, Inc., v. Serio, 431 So. 2d 454, 458 (Miss. 1983)(remanding for determination whether Mississippi or Louisiana law should govern a dispute involving alleged co-tenants of oil leases in Louisiana). The court emphasized that it lacked an evidentiary basis for making the choice of law, but suggested that it appeared Louisiana law might apply, given the averments that the land was in Louisiana, the assignments were recorded in Louisiana, the relationship among the litigants arose from a co-tenancy located in Louisiana, a de fact agreement may have arisen from actions in Louisiana, and Louisiana "custom and usage" were relevant. Nevertheless, the court stated that because all litigants were Mississippi residents, it was unable to conclude that Mississippi law did not apply in the absence of a full evidentiary record. 431 So. 2d at 458.

182. Palmer v. Palmer, 654 So. 2d 1, 2-4 (Miss. 1995), quoting Restatement (Second) of Conflict of Laws § 234.

183. Crowe v. Smith, 603 So. 2d 301, 307-08 (Miss. 1992)(holding that interests in land operated under farming partnership in Louisiana were governed by Mississippi even though under Louisiana law the partnership did not own title to Louisiana real property).

184. Miss. Code Ann. § 89-1-23. In Turner v. Turner, 612 So. 2d 1141, 1143 (1993), the court refused to consider an argument that a nonresident alien surviving spouse could not inherit under this statute when it issue had not bee raised before the chancellor and was raised for the first time on appeal.

185. The special treatment for selected nationalities provides a possible equal protection challenge. The issue was argued on appeal in De Tenorio, but the Fifth Circuit refused to consider it as it had not been raised at trial, 510 F.2d at 101. Nevertheless, Judge Coleman, writing for the majority, suggested that invalidating the statute might not protect foreign nationals rights, as it might lead to the revival of the previous valid statute or to the disability of all nonresident aliens under Mississippi common law. 510 F.2d at 101, citing Scottish Am. Mortgage Co. v. Butler, 99 Miss. 56, 54 So. 666 (1911).

186. Id.

187. U.S. Const. art. 6, cl. 2. For example, where a treaty with Honduras provided for a right of Honduran citizens to dispose of inherited property within three years of succession, that right superseded any inconsistent state law. De Tenorio v. McGowan, 510 F.2d 92, 95-96 (5th Cir. 1975), adhered to, 513 F.2d 294, cert. denied, 423 U.S. 877.

188. See supra note, quoting Restatement (Second) of Conflict of Laws §223. There is a preference for applying the law of the place where the personal property is located, e.g., Restatement (Second) of Conflict of Laws § 244:

(1) The validity and effect of a conveyance of an interest in a chattel as between the parties to the conveyance are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the parties, the chattel and the conveyance under the principles stated in § 6.

(2) In the absence of an effective choice of law by the parties, greater weight will usually be given to the location of the chattel, or groups of chattels, at the time of the conveyance than to any other contact in determining the state of the applicable law.

But this preference is displaced in certain situations, e.g., id. § 249 (effect on third persons of conveyance of by document determined by place where document was at time of conveyance), § 258 (interest of spouse in movable acquired by other spouse usually determined by state of domicile absent choice of law), § 260 (intestate succession determined by decedent's domicile at death), § 263 (validity and effect of will of personal property determined by law of testator's domicile at death), § 264 (construction of will of personal property governed by testator's domicile at death absent designation of law in will).

The traditional rules governing personal property relied on both the law of the territory and the owner's domicile. See generally Edwin W. Briggs, The Dual Relationship of the Rules of Conflict of Laws in the Succession Field, 15 Miss. L.J. 77-112 (1943).

189. Newman v. Newman, 558 So. 2d 821, 824-25 (Miss. 1990)(holding Restatement (Second) of Conflict of Laws §§ 258-59 governed former spouse's right to share of military pension). In his opinion for the court Justice Robertson quoted in full the applicable provisions of the Restatement Second and observed that the rule comported with ancient precedent, recent scholarship, and authority from other jurisdictions. 558 So. 2d at 824-25.

190. Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1039 (Miss. 1985). This seems the best interpretation to give the court's confusing discussion. The Fifth Circuit had certified the question of whether Mississippi or Nebraska law would govern the issue of car ownership. In answering the question certified, the Mississippi Supreme Court stated that the issue would be governed by the "center of gravity" approach but further observed that "[t]he vehicle ownership question in this case is one of contract construction." Id. The opinion presumably made this observation because the need to determine who the car's owner was presented by a contract clause excluding liability while operating certain cars "owned" by the insured. But the law of Mississippi and Nebraska apparently did not conflict as to what the contracting parties meant by "owner."

The only issue was what law determined ownership, and the court held that this was governed by Mississippi law. Id. In other words, the court looked to the law of the place where the car was purchased and operated to determine who the owner was. If it had truly been a matter of contract construction, the court should probably have looked to the law of Nebraska. See supra note ___. For that reason, the opinion should be read as authority for a personal property choice-of-law rule rather than one dealing with contract construction.

191. Newman v. Newman, 558 So. 2d 821, 824, 825 (Miss. 1990). It is important to note that the posture of the case did not involve an equitable distribution. Rather the parties had been previously granted a divorce (in Mississippi), and the former wife moved to California where she remarried. She returned to litigate the issue of the pension after the former husband's retirement. Accordingly the court was presented with a fairly simple issue of title to property, not further complicated by its remedial power in a divorce suit to decree equitable distribution. See also Flowers v. Flowers, 624 So. 2d 992, 993-94 (Miss. 1993)(holding that Chancellor erred as matter of law in finding that wife shared interest in pension acquired prior to marriage by resident of Mississippi).

192. Newman, 558 So. 2d at 825 n.1.

193. Savelle v. Savelle, 650 So. 2d 476 (Miss. 1995). Justice Praether's dissent pointed out that the court did not fully appreciate the conflict of laws issues presented in the case. She argued (rightly, I think) that in making its initial determination regarding the status of the assets for purposes of equitable distribution, the Chancellor should have applied Louisiana law (where the couple was domiciled during the acquisition of the interest in the pension). 650 So. 2d at 479-80 (Prather, P.J., dissenting).

194. For a discussion of pre-Code cases that demonstrate some of the problems that legislation was designed to address, see John R. Bradley, Jr., et al., 1965-66 Mississippi Supreme Court Term--Some Significant Cases, 38 Miss. L.J. 1, 2-4 (1966).

195. Miss. Code Ann. § 75-9-103:

(1) Documents, instruments, letters of credit, and ordinary goods. . . .

(b) [P]erfection and the effect of perfection. . .are governed by the law of the jurisdiction where the collateral is when the last event occurs on which is based the assertion that the security interest is perfected or unperfected.

(c) If the parties. . . understand at the time that the security interest attaches that the goods will be kept in another jurisdiction, then the law of the other jurisdiction governs the perfection and the effect of perfection. . .until thirty (30) days after the debtor receives possession of the goods and thereafter if the goods are taken to the other jurisdiction before the end of the thirty-day period.

(d) When collateral is brought into and kept in this state while subject to a security interest perfected under the law of the jurisdiction from which the collateral was removed, the security interest remains perfected [unless action is required by Part 3 of this chapter to perfect the security]. . .

(2) Certificate of title. . . .

(b) [P]erfection and the effect of perfection. . .are governed by the law (including the conflict of laws rules) of the jurisdiction issuing the certificate until four (4) months after the goods are removed from that jurisdiction and thereafter until the goods are registered in another jurisdiction, but in any event not beyond surrender of the certificate. After the expiration of that period, the goods are not covered by the certificate of title. . .

(c) [A] security interest, perfected in another jurisdiction otherwise than by notation on a certificate of title, in goods brought into this state and thereafter covered by a certificate of title issued by this state is subject to [§ (1)(d)].

(d) If goods are brought into this state while a security interest therein is perfected in any manner under the law of the jurisdiction from which the goods are removed and a certificate of title is issued by this state and the certificate does not show that the goods are subject tot the security interest or that they may be subject to security interest no shown on the certificate, the security interest is subordinate to the rights of a buyer of the goods who is not in the business of selling goods of that kind to the extent that he gives value and receives delivery of the goods after issuance of the certificate and without knowledge of the security interest.

[Other sections give rules for accounts, general intangibles, mobile goods, chattel paper, minerals, and investment property.]

The conflicts rules in article nine have been repeatedly amended. See D. Fenton Adams, The 1972 Official Text of the Uniform Commercial Code: Analysis of Conflict of laws Provisions, 45 Miss. L.J. 281-364 (1974); George W. Stengel & Don P. Lacy, The Uniform Commercial Code: A Preview 37 Miss. L.J. 55, 82 (1965), A. Spencer Gilbert III, Observations of UCC Article 9: Mississippi's First Five Years, 44 Miss. L.J. ___, 209-11 (discussing conflicts rules in original version of U.C.C.)

196. Miss. Code Ann. § 63-21-43(3):

If a vehicle is subject to a security interest when brought into this state, the validity of the security interest is determined by the law of the jurisdiction where the vehicle was when the security interest attached, subject to the following:

(a) If the parties understood at the time the security interest attached that the vehicle would be kept in this state and it was brought into this state within thirty (30) days thereafter for purposes other than transportation through this state, the validity of the security interest in this state is determined by the laws of this state.

(b) If the security interest was perfected under the law of the jurisdiction where the vehicle was when the security interest attached, the following rules apply:

(i) If the name of the lienholder is shown on an existing certificate of title issued by that jurisdiction, his security interest continues perfected in this state.

(ii) If the name of the lienholder is not shown on an existing certificate of title issued by that jurisdiction the security interest continues perfected in this state for four (4) months after a first certificate of title of the vehicle is issued in this state, and also thereafter if, within the period of four (4) months, it is perfected in this state. The security interest may also be perfected in this state after the expiration of the period f o four (4) months, in which case perfection dates from the time of perfection in this state.

Older authority held this statute provides the exclusive method for perfecting such security interests, citing Miss. Code Ann. § 63-21-55, Memphis Bank & Trust Co. v. Pate, 362 So. 2d 1245, 1248-49 (Miss. 1978)(holding that the statute governing perfection of security interests in motor vehicle applied over more general provisions of Uniform Commercial Code). But the Uniform Commercial Code has been subsequently amended to specifically refer to certificates of title. See supra note ___ (quoting text of current statute). See generally 3 U.L.A., Uniform Commercial Code § 9-103 Official reasons for 1972 change, and (1997 supp.)(1994 amendments).

197. See generally Story, supra note ___, § 113 at 197 ("The general principle certainly is. . .that between persons, sui juris, marriage is to be decided by the law of the place, where it is celebrated. If valid there, it is valid every where. It has a legal ubiquity of obligation. If invalid, there it is equally invalid every where."). The traditional rules were set forth in the first Restatement:

Except as stated in §§131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are compiled with.

Restatement [First] of Conflict of Laws §§ 121. The first exception provided that parties to a divorce that were prohibited from remarrying for a certain period of time could not obtain a valid marriage out of their home state if their home state interpreted the prohibition upon remarriage as having extraterritorial effect. Id. § 131. The second exception provided:

A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been compiled with, will be invalid everywhere in the following cases:

(a) polygamous marriage,

(b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil,

. . .

(d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.

Id. § 132. The exceptions were largely derived from Story's treatise. Story, supra note ___, §§ 113a-124a 197-234. The Second Restatement retains the traditional preference for recognizing a marriage valid where celebrated but states the rule more generally. See Restatement (Second) of Conflict of Laws § 283 ("A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.").

198. The achievement of formalism in conflicts theory is nowhere more apparent than in the marriage rules. These general rules (and exceptions) are repeated with little question in the treatises. Scoles & Hay, supra note ___, § 13.5 at 436, Richman & Reynolds, supra note ___, § 116; Weintraub, supra note ___, § 5.1A at 230. But there are few cases supporting application of the rules at the fringes, and their appeal is hardly intuitive. According to both Restatements, for example, Mississippi (and all other states) might be required to recognize certain polygamous marriages that are not invalid where celebrated or illegal under the law of any of the spouses' domicile. But there is little or no authority for this, and its application by courts is highly doubtful. For example, "I Divorce Thee, I Divorce Thee,'" Memphis Commercial Appeal A-2 (Feb. 24 1990), a short news article intended as humorous, recounted how a judge in Atlanta had granted three divorces simultaneously to a husband who was a partner to three wives as a result of marriages in West Africa. The article also contained an interview with the District Attorney who, when asked about prosecuting the husband for criminal bigamy, responded, "We don't have room in our jail for bigamists." See Scoles & Hay, supra note ___, § 13.18 at 462 ("It may be doubted whether a foreign visitor would be permitted to cohabit here with his four wives although even this is uncertain.")

Conversely, the rules stated in the Restatements would prevent Mississippi from recognizing a valid interracial marriage celebrated in Mississippi between South African citizens who came here to obtain the benefit of our marriage law prior to the fall of the apartheid system in South Africa. See Restatement [First] Conflict of Laws § 132(c); Restatement (Second) of Conflict of Laws § 283. But there is no authority for such a result, nor any reason for it. See Albert A. Ehrenzweig, Miscegenation in the Conflict of Laws: Law and Reason Versus the Restatement Second, 45 Cornell L. Rev. 659, 659-78 (1960)(showing lack of case authority for the rules as formulated in both Restatements and criticizing the result); Story, supra note ___, § 123a at 221, § 124a at 233-34 (French rule that extraterritorial marriages of its domiciliaries are void should be disregarded by other countries, and such a French rule is "an usurpation, founded in injustice, and a disregard of the true duty and policy of all civilized nations in their intercourse with each other.").

199. Miller v. Lucks, 203 Miss. 824, 36 So. 2d 140, 141 (1948)("[T]his marriage being valid in Illinois, where contracted, must be recognized and given effect as such unless so to do violates this Statute or the state's public policy as declared therein."); Turner v. Turner, 612 So. 2d 1141, 1143 (Miss. 1993)(observing that Mississippi "must recognize a marriage solemnized under the laws of a sister state."); Walker v. Matthews, 191 Miss. 489, 3 So. 2d 820 (1941)(recognizing common law marriage that had been established in Alabama even though couple returned to Mississippi which had no common law marriage at the time); see generally N. Shelton Hand, Jr., Mississippi Divorce, Alimony & Child Custody §§ 1-3 (4th ed. 1996). The cases have all involved contracted in other states of the United States, and the language in the opinions has accordingly referred to the rule providing for the recognition of marriages from sister states. Nevertheless, because Mississippi is not required to recognize such marriages under the full faith and credit clause, these cases establish a rule of comity under Mississippi state conflicts of laws principles, and the cases provide authority for the general validity of marriages celebrated in foreign countries.

200. George v. George, 389 So. 2d 1389, 1390 (Miss. 1980)("[I]f a valid common-law marriage was celebrated in Georgia, it will be recognized in this state.").

201. Miss. Code Ann. § 93-1-1(1):

The son shall not marry his grandmother, his mother, or his stepmother; the brother his sister; the father his daughter, or his legally adopted daughter, or his grand-daughter; the son shall not marry the daughter of his father begotten of his stepmother, or his aunt, being his father's or mother's sister, nor shall the children of brother or sister, or brothers and sisters intermarry, being first cousins by blood. The father shall not marry his son's widow; a man shall not marry his wife's daughter, or his wife's daughter's daughter, or his wife's son's daughter, or the daughter of his brother or sister; and the like prohibition shall extend to females in the same degrees. All marriages prohibited by this subsection are incestuous and void.

1997 Miss. Laws ch. 203. Section 93-1-3 provides: "Any attempt to evade section 93-1-1 by marrying out of this state and returning to it shall be within the prohibitions of said section." It is a crime to violate these provisions punishable by up to ten years imprisonment. Miss. Code Ann. § 97-29-27.

202. Couples denied a marriage license under Hawaii legislation restricting marriage to heterosexual couples, Hawaii Rev. Stat. § 572-1 (1985), challenged the law under the state constitution's prohibition against discrimination on the basis of sex, Hawaii Const. art. I § 5. The lower courts had rejected the claims on the pleadings without any hearing. The supreme court reversed and vacated, holding that the statute on its face denied same-sex couples legal benefits based on sex and that the discrimination would accordingly have to satisfy the "strict scrutiny" test under the state constitution. Baehr v Lewin, 74 Haw. 530, 852 P.2d 44, reconsidered in part, 74 Haw. 645, 76 Haw. 276, 875 P.2d 225 (1993), appeal after remand sub nom., Baehr v. Miike, 80 Haw. 341, 910 P.2d 112 (1996), injunction granted, 96 Daily L.J.D.A.R. 14647 (Haw. CT. App. 1996). Until that decision, cases from different United States jurisdictions had uniformly refused to permit same-sex marriages and had refused to recognize such marriages celebrated in other jurisdictions. See generally Peter G. Guthrie, Annotation, Marriage Between Persons of the Same Sex, 63 A.L.R.3d 1199-1202 (1975) & (1996 supp.).

203. From the start, the news media implied that the decision would result in recognition of homosexual marriages and focused on the possible extraterritorial effects of decision. E.g., Jorge Aquino, "Will Other States Say 'Aloha' to Same-Sex Marriages?," The Recorder at 3 (May 10, 1993)("If gay and lesbian couples are ultimately permitted to marry in Hawaii, will other states be required to recognize those marriages?"); Michael Gray, "Hawaii Could be First State to OK Same-Sex Marriage," The San Francisco Examiner A-22 (Sunday 5th ed. Feb. 20, 1994)("Should [Hawaii recognize homosexual marriages], lawyers say it could be the first step in a complete revamping of marriage and family law across the United States, with same-sex couples gaining all the benefits now reserved for heterosexual married couples."); Dennis Lucarelli, "Laws Deny Equal Rights to Gay Couples," The San Diego Union-Tribune B-7 (June 10, 1994)("With this decision, our 50th state has come the farthest along the road toward legal recognition of lesbian and gay marriage. Other states' courts may follow in Hawaii's footsteps, and the Hawaii case could eventually land in the U.S. Supreme Court and achieve historical significance similar to that accorded Brown vs. the Board of Education. . .").

204. E.g, Barbara J. Cox, Same-Sex marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married When We Return Home?, 1994 Wisc. L. Rev. 1033, 1102 (1994)(arguing "that when courts are faced with the case of a resident couple's same-sex marriage, those courts should follow the better rule of land and validate the marriage. . ."), Deborah Henson, Will Same-Sex Marriages Be Recognized in Sister States?: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin, 32 U. Louisville J. Family L. 551, 584-91 (1993-94)(recognizing that states are not required to accord full faith and credit to recognize marriages from other states under present cases but arguing that full faith and credit should be applied to validity of same-sex marriages celebrated in other states).

205. The full faith and credit clause specifically authorizes Congress to "prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." U.S. Const. art IV § 1. The official name of the Act is the "Defense of Marriage Act." Defense of Marriage Act, Pub. L. No. 104-199 § 1 (Sep. 21, 1996). It provides:

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

28 U.S.C.A. § 1745 (1997 supp.).

206. Miss. Code § 93-1-1(2), amended by Senate Bill no. 2053, approved and enacted February 12, 1997:

Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.

207. Justice Story apparently coined the term incidents, devoting a separate chapter to "Marriages--Incidents To." Story, supra note ___, ch. 6. But what Story meant by "incidents" were the scope of the rights or disabilities that arose as a consequence of a valid marriage. He did not suggest that a marriage, invalid under general choice-of-laws principles, would be recognized in other contexts.

208. Scholars agree that cases tend to show that courts are increasingly willing to recognize the validity of otherwise invalid marriages when to do so would not frustrate local policy. Scoles & Hay, supra note ___, § 13.4 at 434-35; Richman & Reynolds, supra note ___, § 116[c] at 363-64; Weintraub, supra note ___, § 5.1B at 233. See Estate of Bir, 83 Cal. App. 2d 256, 188 P.2d 499 (1948)(allowing two wives to share intestate distribution where neither wife disputed other's claim).

209. Miller v. Lucks, 203 Miss. 824, 36 So. 2d 140 (1948) presented the court with the issue of the recognition of an interracial marriage celebrated in Illinois. The couple had initially lived in Mississippi, but were forced to leave the state in order to avoid criminal prosecution for unlawful cohabitation in Hinds County. They moved to Chicago, married in 1939 in Illinois as Illinois residents. The wife died, intestate, owning real property in Mississippi.

The Mississippi Constitution at the time provided that "the marriage of a white person with a negro or mulatto, or person who shall have one-eighth or more of negro blood, shall be unlawful and void." Miss. Const. § 263, repealed by legislative action and ratification by electorate December 4, 1987, and invalid under U.S. Const. amend. XIV. Moreover, interracial marriages were criminally punished as incestuous, as were attempt to evade the prohibition by marrying out-of-state. The relevant statute provided:

[T]he marriage of a white person and a negro or mulatto or person who shall have one-eighth or more of negro blood. . . shall be unlawful, and such marriage shall be unlawful and void; and any party thereto, on conviction, shall be punished as for marriage within the degrees prohibited by the last two sections; and any attempt to evade this and the two preceding sections by marrying out of this state and returning to it shall be within them.

36 So. 2d at 140, quoting criminal code.

The court concluded, however, that the purpose of the statute was to prevent interracial couples from living together in the state as husband and wife.

Where, as here, this did not occur, to permit one of the parties to such a marriage to inherit property in this state from the other does not violence to the purpose of Sections 263 of our Constitution and 459 of the Code of 1942. What we are requested to do is simply to recognize this marriage to the extent only of permitting one of the parties thereto to inherit from the other property in Mississippi, and to that extent it must and will be recognized.

36 So. 2d at 142.

Although this decision might be rejected as further evidence of the racial animosity underlying the legislation at issue, because it allowed the surviving white spouse to inherit (and divest the local African American heirs), it is preferable to read it, as authority that exceptions to the strong preference for recognizing marriages that are valid where celebrated will be applied only when and to the extent necessary to advance the policy that led to the creation of the exception.

210. The strong preference for probating a will of movables at the domicile of the decedent gave rise to the practice in some ancillary courts of declining probate until after probate at the domicile, and some authorities even concluded that probate at the domicile was a jurisdictional prerequisite for exercising ancillary jurisdiction, see Bailey v. Osborn, 33 Miss. 128 (1857)(holding probate court lacked jurisdiction to grant probate of will of nondomiciliary prior to probate in state of domicile), contra Still v. Woodville, 38 Miss. 646 (1860)(dictum to the contrary in case where decedent was found to be Mississippi domiciliary). See generally Story, supra note ___, § 518 at 890-91; Scoles & Hay, supra note ___, § 22.2 at 854-55.

211. Miss. Code Ann. § 91-1-1. See generally Robert Weems, Wills & Administration of Estates in Mississippi §§ 2-55, 3-14 & 7-16 at 88, 102, 174.

212. Bolton v. Barnett, 131 Miss. 802, 95 So. 721, 724-25 (1923)(affirming jurisdiction of chancellor over proceeding to probate will of Tennessee testatrix prior to its probate in Tennessee).

213. Miss. Code Ann § 91-7-33 provides:

Authenticated copies of wills proven according to the laws of any of the states of the union, of the territories, of the District of Columbia, or of any foreign country, and affecting or disposing of property within this state, may be admitted to probate in the proper court. Such will may be contested as the original might have been if it had been executed in this state, or the original will may be proven and admitted to record here.

See Estate of Torian, 321 So. 2d 287 (Miss. 1975)(holding that Mississippi not required to defer to courts of domicile state on issue of priorities of assets in paying taxes); Gilmore v. Gilmore, 144 Miss. 424, 110 So. 111 (1926)(holding that beneficiary's acquiescence in Louisiana probate did not estop collateral attack on proceedings in Mississippi); Woodville v. Pizzati, 119 Miss. 442, 81 So. 127 (1919)(holding that Louisiana judgment admitting will to probate was not binding in Mississippi court). See Belt v. Adams, 125 Miss. 387, 87 So. 666, 668 (1921)("It is true that a will does not become effective as an instrument of conveyance in this state until it is probated in the state. . ."). See generally Weems, supra note ___, § 3-14 at 102.

214. In Heard v. Drennen, 93 Miss. 236, 46 So. 243 (1908), two executors named in a will previously admitted to probate in Georgia protested against the appointment of a third executor also named in the will on the ground that the third executor was not qualified under Georgia law. The Supreme Court affirmed the appointment of the third executor, holding that the statute permitting probate of authenticated copies of foreign wills was intended only to dispense with proof and that the will, once placed in evidence by authenticated copy, was to be treated just like a Mississippi will. The third executor was properly appointed because he met the qualifications of appointment under Mississippi law by being named in the will. 46 So. at 244. Accord Bolton v. Barnett, 95 So. 721, 724-25 (Miss. 1923)(holding that Mississippi law governed surviving spouse's right to renounce will and take forced share in case involving will of Tennessee testatrix).

Although these cases applied traditional conflict of laws rules, the result should not vary under the Restatement Second approach. For disposition of land, the result would be the same. Restatement (Second) of Conflict of Laws § 236 (intestate succession of land governed by law of place of where land located), § 239 (validity of will of land determined by law of place where real property located), § 242 (right of surviving spouse to forced or real property governed by law of place of real property). But, though the Restatement provides for a possibly different result regarding the disposition of personal property, id. § 265 (right of surviving spouse to forced share governed by law of state where deceased spouse domiciled at death), Mississippi provides by statute that the widow's right to a forced share in a personal estate is governed by the laws of Mississippi. Miss. Code Ann. § 91-1-1. Though Slaugther v. Garland, 40 Miss. 172 (1866), limited this statute to cases of intestate succession, it was effectively overruled by Bolton v. Barnett, 95 So. at 725. See also Wilson v. Cox, 49 Miss. 538 (1873)(holding statute applies in cases of partial intestacy).

215. Estate of Mason, 616 So. 2d 322 (Miss. 1993).

216. Estate of Mason, 616 So. 2d 322 (Miss. 1993); Bolton v. Barnett, 131 Miss. 802, 827, 956 So. 721, 725-26 (1923).

217. Estate of Mason, 616 So. 2d 322 (remanding for determination whether bequest to charity exceeded one-third value of estate in violation of mortmain statute).

218. Belt v. Adams, 87 So. 666, 668 (Miss. 1921)(holding will must be executed in accord with Mississippi law to be probate in Mississippi).

219. See generally Weintraub, supra note ___, § 8.13 at 439:

One of the most objectionable applications of the situs rule is to invalidate, because of lack of requisite formalities, a will that satisfies the formalities indicated by the law of the testator's settled residence where it was executed. In reaching such a result, the situs not only upsets the expectation of the testator and the policy of a sister state . . .but also advances no conceivable interest that it, qua situs, can have.

A foreign will might fail to comply with any number of Mississippi's formal requirements. See generally Weems, supra note ___, §§ 4-4 to 4-14. In addition, the foreign will might be held invalid due to lack of testamentary capacity, id. § 4-2 to 4-3 at 110-11, undue influence, id. at §§ 8-17 to 8-18 at 196 to 204, or some other ground under Mississippi law.

220. This possibility is suggested by In re Barrie's Estate, 240 Iowa 431, 35 N.W.2d 658 (1949)(holding under Iowa borrowing statute that will was valid under Illinois law and holding that testator's writing "void" repeatedly on will did not revoke despite fact that will was validly revoked under Illinois law and denied probate in Illinois). See generally Roy C. Kuyrkendall, Jr., Note, Wills--Conflict of Laws--Revocation in a Foreign Jurisdiction, 21 Miss. L.J. 177-79 (1949(criticizing decision as inconsistent with legislative intent of Iowa's borrowing statute).

221. See generally John B. Rees, Jr., American Wills Statutes, 46 Va. L. Rev. 856, 905 (1960)(32 states with statutes borrowing some alternative method of executing valid will). The Uniform Probate Code (adopted by 16 states) provides:

A written will is valid. . .if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.

Uniform Probate Code § 2-506. For a discussion of this provision and for an excellent comparison of the Uniform Probate Code with current Mississippi law, see Robert A. Weems & Katherine L. Evans, Mississippi Law of Intestate Succession, Wills and Administration and the Proposed Mississippi Uniform Probate Code: A Comparative Analysis, 62 Miss. L.J. 1, 19 (1992).

222. Tilt v. Kelsey, 207 U.S. 43 (1907). Of course, there must have been constitutionally sufficient notice to establish valid in rem jurisdiction. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).

223. There is no general probate exception to full faith and credit. See generally Scoles & Hay, supra note ___, § 22.3 at 856.

224. Estate of Waitzman, 507 So. 2d 24 (Miss. 1987)(party who appeared and lost will contest in Florida could not contest the validity of will again in Mississippi when only personal property was located in Mississippi).

225. Woodville v. Pizzati, 119 Miss. 442, 461, 81 So. 127, 131 (1919). See generally Weems, supra note ___, § 8-21 at 206-07.

226. In Beauchamp v. Beauchamp, 574 So. 2d 18 (Miss. 1990), the testator, a Wisconsin domiciliary at death, devised real property in Mississippi with a restriction on use that the Chancellor held violated Mississippi's prohibition of restraint against alienation under Mississippi law. In his opinion reversing, Justice Pittman explained that the law of the testator's domicile must govern the intent of language employed in his will:

This court has consistently held that the law of the person's domicile is to be used when construing the provisions of a testator's will, unless it is clear from the instrument itself that the testator intended that the laws of another jurisdiction should control.

574 So. 2d at 20. Applying law from Wisconsin, the court held that the word "give, devise and bequeath" established a fee simple, and the restrictions added had no legal effect. 574 So. 2d at 22.

The court cited three cases: Martin v. Eslick, 229 Miss. 234, 252, 90 So. 2d 635, 641 (1956), judgment corrected, 229 Miss. 261, 92 So. 2d 244 (1957), Palmer v. Crews, 203 Miss. 806, 818, 35 So. 2d 430, 434 (1948), Ball v. Phelan, 94 Miss. 293, 49 So. 956 (1908). But a close reading of these cases provides little authority for the court's holding. On the contrary, they may provide support the view that Mississippi law should apply to resolve ambiguities in wills of land in Mississippi. First, Martin did not apply foreign law but merely held under Mississippi law that language that seemed to impose a restraint would be disregarded so as to pass a fee simple. Palmer construed a Texas domiciliary's use of the word "royalty" under Texas law not to apply to mineral leases owned in Mississippi and stated the rule that "a will is to be construed according to the laws of the domicile of the testator as to the disposition intended to property in another state, unless it is clear from the instrument itself that he intended that the laws of the latter state should control. . ." 35 So. 2d at 434. But the court at the same time applied the rule (under Mississippi law) that required giving effect to a term with a "well-defined meaning," 35 So. 2d at 434, and the court proceeded in interpreting another ambiguity in the will to figure out for itself (without recourse) to Texas cases) what the testator most likely meant, 35 So. 2d at 436. And, though Ball cited approvingly the rule that the lex domicilii controls the interpretation of the testator's intention, 49 So. at 967, that opinion limited the rule to the use of technical legal terms or terms given an effect as a rule of law:

technical terms, which terms have acquired, in the domicile of the testator, a fixed and unchangeable meaning, thus becoming a rule of property, these terms in such will, in whatever state the will is up for construction, shall be given, in the interpretation of the will, the meaning that would be given them by the court of his domicile.

49 So. at 968. The court looked to Tennessee cases, but in deciding that the testator intended to create a remainder, it used its own judgment (implicitly applying Mississippi law) to draw inferences about the testator's purposes. 49 So. at 969.

I should warn, however, that the rule stated in Ball was not only dictum. It was bad dictum. It would seemingly require Mississippi to look behind words here given a specific legal effect in conveying land. There is some general authority for the holding in Beauchamp as regards ambiguous words that have no such fixed legal meaning and where the purpose of interpretation is to discover a testator's intention. See Restatement [First] of Conflict of Laws § 251(3)(language in will of land that is matter of testator's intent should be construed in accordance with law of place testator domiciled when will made). But there is scant authority for looking to the testator's domicile to determine the effect of conveyancing language with fixed legal meaning. Id. § 251(1)-(2).

Furthermore, I question whether even matters of pure intent should be determined by the testator's domicile. The Restatement Second has departed from the rule with regard to land, see Restatement (Second) of Conflict of Laws § 240 (absent choice-of-law in will, will of land is construed in accordance with the law of the place where the land is), but not personal property, id. § 264 (absent choice-of-law in will, will of movables is construed in accordance with the law of the place where the testator was domiciled at the time of death).

227. This approach was urged, at least when the language of a will is unambiguous, by Justice Blass, joined by Justices Prather and Dan M. Lee, dissenting in Beauchamp, 574 So. 2d at 24.

228. See, e.g., Estate of Mason, 616 So. 2d 322 (holding that gift to predeceased individual lapsed under Mississippi case authority that bequest to named individual was presumed to be individual not class gift absent evidence of contrary intent).

229. Restatement [First] of Conflict of Laws § 245 ("The law of the state where the land is determines its devolution upon the death of the owner intestate."), J. Story, supra note ___, § 483 at 823 ("The descent and heirship of real estate is exclusively governed by the law of the country, within which it is actually situate.").

230.

231. See generally Weems, supra note ___, § § 1-2 at 3. Mississippi's decision to follow the Restatement Second does not change this rule, because it is retained by the Restatement Second:

Intestate Succession to Land

(1) The devolution of interest in land upon the death of the owner intestate is determined by the law that would be applied by the courts of the situs.

(2) These courts would usually apply their own local law in determining such questions.

Restatement (Second) of Conflict of Laws § 236.

232. Miss. Code Ann. § 91-1-1:

All personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other states, and notwithstanding the domicile of the deceased may have been in another state, and whether the heirs or persons entitled to distribution be in this state or not. The widow of such deceased person shall take her share in the personal estate according to the laws of this state.

There is no legislative history for this statute. It was very likely a reaction to the public controversy over the arguments in the Dred Scott case in 1857 or other similar cases, and was probably designed to assure that slaves in Mississippi would pass in accordance with the pro-slavery laws of the state and not be affected by the property laws of the residence of the decedent's legatees or statutory beneficiaries.

233. "Mississippi is the only state that doesn't apply domiciliary law to substantive issues of succession [of personal property]." Scoles & Hay, supra note ___, § 22.16 at 880 n.7.

234. Story, supra note ___, § 481 at 818 ("The universal doctrine, now recognized by the common law, although formerly much contested, is, that the succession to personal property is governed exclusively by the law of the actual domicil of the intestate at the time of his death."). See generally Restatement (Second) of Conflict of Laws § 260 ("The devolution of interests in movables upon intestacy is determined by the law that would be applied by the courts of the state where the decedent was domiciled at the time of his death.") The First Restatement provided that upon death title to all chattels vested in the executor or administrator appointed by the state where the chattels were habitually kept, Restatement [First] of Conflict of Laws § 300, but the Restatement Second returned to Story's rule.

235. Carroll v. McPike, 53 Miss. 569, 577 (1876)(holding that administration in Mississippi is an original proceeding to be conducted in accord with Mississippi law); Partee v. Kortrecht, 54 Miss. 66, 70 (1876).

236. Richardson v. Neblett, 122 Miss. 723, 84 So. 695 (1920), Jahier v. Rascoe, 62 Miss. 699 (1885)(applying statute to debt incidental to state where "owner of debt" dealt with it so as to establish intent to locate it in state). Rent on Mississippi land is governed by Mississippi law, id. But a debt is not necessarily deemed located in Mississippi when owed by a Mississippi resident to a nonresident. Speed v. Kelly, 59 Miss. 47 (1881).

237. Ewing v. Warren, 144 Miss. 233, 109 So. 601 (1926)(stock in Mississippi corporation owned by Minnesota domiciliary held located in Mississippi and distribution governed by Mississippi law), Jane v. Martinez, 104 Miss. 208, 61 So. 177 (1913)(stock in Mississippi bank owned by nonresident held governed by Mississippi law covering exemptions).

238. Ewing v. Warren, 109 So. 601 (holding money deposited in Mississippi bank governed by Mississippi law).

239. Richardson v. Neblett, 122 Miss. 723, 84 So. 695 (1920).

240. See 28 U.S.C. §§ 1335, 1397, 2361; Fed. R. Civ. P. 22.

241. See generally L.C. Franklin, Jr., Note, The Conflict of Laws of Descent and Distribution of Property Located in Mississippi, 12 Miss. L.J. 366-73 (1940)(criticizing Louisiana decision that considered disposition of out-of-state property in applying Louisiana statute to inheritance of real property in Louisiana).

242. Estate of Torian, 321 So. 2d 287 (Miss. 1975)(holding that property located in Mississippi is governed by forum rules regarding priorities of assets in paying taxes).

243. Mitchell v. Craft, 211 So. 2d 513, ___, 513 (1968), see supra note ___.

244. Restatement (Second) of Conflict of Laws § 145 (1).

245. See McDaniel v. Ritter, 556 So. 2d 303 (Miss. 1989)(applying foreign law to all issues except comparative negligence); Boardman v. United Servs. Auto. Ass'n, 470 so. 2d 1024 (Miss. 1985)("[T]he law of a single state doe snot necessarily control every issue in a given case. We apply the center of gravity test to each question presented, recognizing that the answer produced in some instances may be that the law of this state applies an on other questions in the same case the substantive law of another state may be enforceable."); Vick v. Cochran, 316 So. 2d at 246 (Mississippi law governs procedure, Alabama law governs guest statute, and Mississippi law governs negligence on Mississippi roads); Fells v. Bowman, 274 So. 2d 109, 111 (Miss. 1973)(applying Mississippi comparative negligence in accident involving two Mississippi cars in Louisiana but applying Louisiana law to issue of negligence).

246. The drafters of the Restatement obviously had a guilty conscience, for they conceded the "great generality" of this section and further acknowledged that "the best way to bring precision into the field is by attempting to state special rules for particular torts and for particular issues in tort." Id. § 145 comment a.

247. The section referred to in section 145 provides:

Choice-of-Law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Id. § 6. The list is not exhaustive, nor are the "factors" listed in order of importance. Id. § 6 comment c.

The Restatement suggests that several of these factors are of less importance in torts than other areas, including the protection of justified expectations and the values of certainty, predictability, and uniformity. The most important factors are thus: the needs of the interstate and international systems, the relevant policies of the forum, the relevant policies of other states, and ease in determination and application of the law to be applies. Id. § 145 comment b.

Professor Jackson points out that subsections (a), (e), (f), and (g) are addressed in no Mississippi cases. Jackson, supra note ___, § 4:11 at 4-17 n.43. In decisions from other Restatement Second jurisdictions, these subsections, when mentioned, have little effect on the result. E.g., Griggs v. Riley, 489 S.W.2d 469 (Mo. Ct. App. 1972).

248. "At least some of the factors mentioned in this Subsection will point in different directions in all but the simplest case. Hence any rule of choice of law, like any other common law rule, represents an accommodation of conflicting values." Id § 6 comment c.

The "most significant relationship" language of the Restatement has been much criticized. But its vagueness is a virtue if the purpose of the rules is to empower courts to implement appropriate state policies after carefully considering relevant facts. Cf. David F. Cavers, The Choice of Law: Selected Essays, 1933-1983 67 (1985)("The phrase is cryptic, question-begging. Indeed, its question-begging character seems to me its principal virtue as I compare it with its rivals. . .").

249. Restatement (Second) of Conflict of Laws § 145(2):

Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

250. Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1036 (Miss. 1985)("The suggestion that plaintiffs can change the substantive law according to which a particular action must be adjudicated by changing their citizenship prior to filing suit simply won't wash. The choice of law inquiry must relate to the times relevant to the transaction or occurrence giving rise to the claim ab initio. Where the Boardmans lived at the time suit was filed would, however, be relevant to the subject matter jurisdictional inquiry."), answer conformed to, 768 F.2d 718 (5th Cir. 1985). Cf. Rieger v. Group Health Ass'n, 851 F. Supp. 788 (N.D. Miss. 1994)(giving weight neither to plaintiff's move to Mississippi prior to commencement of action nor to move to another state prior to decision). See Jackson, supra note ___, at § 4:15 at 4-27 ("The Mississippi rule in this circumstance is clear. Post-event changes of domicile do not have choice of law significance and so are ignored in choice of law analysis."). This is consistent with the suggestion of the drafters of the Restatement Second, who avoided adopting it as a rule. Restatement (Second) of Conflict of Laws Introductory note at 414 ("Presumably, this change of domicile should have no effect upon the law governing most of the issues involving the accident."). But see generally Weintraub, supra note ___, § 6.28 at 346-49 (arguing that after-acquired domicil is relevant for evaluation of state interests and discussing cases that have considered it). Currie went so far as to suggest a court that granted a dismissal on grounds of forum non conveniens without giving favorable consideration to a plaintiff's residence acquired after the cause of action would violate equal protection. Currie, supra note ___, at 573 (1963).

251. Restatement (Second) of Conflict of Laws § 145 comment e at 421.

252. Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1036 (Miss. 1995), answer conformed to, 768 F.2d 718 (5th Cir. 1985).

253. Restatement (Second) of Conflict of Laws §§ 156-72, 174.

254. Restatement (Second) of Conflict of Laws § 145 comment e at 421.§ 173 ("The law selected by the application of the rule of § 145 determines whether one tortfeasor has aright to contribution or indemnity against another tortfeasor."). See East Mississippi Elec. Power Ass'n v. Porcelain Prods. Co., 757 F. Supp. 748 (S.D. Miss. 1990)(applying Mississippi choice-of-law rules to determine that Tennessee law governed claim for indemnity where parties interested in indemnity issue were Tennessee residents despite fact that tort occurred in Mississippi); Richardson v. Clayton & Lambert Mfg. Co., 634 F. Supp. 1480 (N.D. Miss. 1986), later proceeding, 657 F. Supp. 751 (N.D. Miss. 1986)(applying Mississippi law to claim of Kentucky resident defendant for indemnity from Illinois resident for claims arising from tort in Mississippi).

The result of claims for indemnification can be manipulated by characterizing them either as torts (governed by the tort rules) or as contracts (governed by contract rules). See generally Jackson, supra note ___, § 4:9 at 4-13 to 4-14. In addition, actions for quasi contract might be characterized as procedural and governed by forum law, see supra note ___, or might be viewed as grounded in a sort of unjust enrichment and governed (under older authority) by the law of the place where the benefit was conferred. Restatement [First] of Conflict of Laws §§ 452-53.

255. Id. § 146:

In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which even the local law of the other state will be applied.

256. Id. § 175:

In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

Cf. Chapman v. Thrasher Trucking Co., 729 F. Supp. 510, 511 (S.D. Miss. 1990)(quoting Restatement and applying Louisiana law death, in action for wrongful death of Mississippi resident killed in Louisiana).

257. Id. § 147:

In an action for an injury to land or other tangible thing, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

258. Id. § 149:

In an action for defamation, the local law of the state where the publication occurs determines the rights and liabilities of the parties, except as stated in § 150, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

The exception deals with "aggregate" communications--single broadcasts or publications that reach into several sates--which are determined by the state with the most significant relationship. Id. § 150(1). For natural persons who are defamed, this place "will usually be the state where the person was domiciled at the time, id. § 150(2), and for corporations it will "usually be the state where the corporation, or other legal person, had its principal place of business at the time, if the matter complained of was published in that state," id. § 150 (3).

Injurious falsehood is governed by the same rules as defamation. Id. § 151.

259. Id. § 152:

In an action for an invasion of a right of privacy, the local law of the state where the invasion occurred determines the rights and liabilities of the parties, except as stated in § 153, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

The exception deals with multistate invasion of privacy by "aggregate" communications in several states by a single broadcast or publication, in which case the law applied is "will usually be the state where the plaintiff was domiciled at the time if the matter complained of was published in that state." Id. § 153.

260. Id. § 154:

Interference with Marriage Relationship

The local law of the state where the conduct complained of principally occurred determines the liability of one who interferes with a marriage relationship, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

261. There is no specific rule on this but the commentary to the Restatement states that "alienation of a parent's affections is governed by the same choice-of-law rule as that applicable to an interference with a marriage relationship." Id. § 154 comment e.

262. Id. § 155:

Malicious Prosecution and Abuse of Process

The rights and liabilities of the parties for malicious prosecution or abuse of process are determined by the local law of the state where the proceeding complained of occurred, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

But cf. Hyde Constr. Co. v. Koehring Co., 455 F.2d 337, 341 (5th Cir. 1972)(holding under Mississippi "center of gravity" rule that Mississippi law applied to all issues, including scope of attorney-client privilege, in abuse of process claims involving contempt proceedings in Oklahoma and related litigation in Mississippi).

263. Id. § 148:

Fraud and Misrepresentation

(1) When the plaintiff has suffered pecuniary harm on account of his reliance on the defendant's false representation and when the plaintiff's action in reliance took place in the state where the false representations were made and received, the local law of this state determines the rights the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

When the misrepresentation and reliance occurred in different states, the forum applies the law of the state with the most significant relationship, considering these factors:

(a) the place, or places, where the plaintiff acted in reliance upon the defendant's representations,

(b) the place where the plaintiff received the representations,

(c) the place where the defendant made the representations,

(d) the domicil, residence, nationality, place of incorporation and place of business of the parties,

(e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and

(f) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant.

Id. § 148(2).

Accord Vicon, Inc. v. CMI Corp., 657 F.2d 768, 772 (5th Cir. 1981)(holding under Mississippi choice-of-law rules that Tennessee law governed claim of tortious misrepresentation arising from sale of manufacturing plant in Mississippi to Mississippi resident when alleged misrepresentations were made in Tennessee by defendant's representatives in Tennessee and reliance in form of part payment occurred in Tennessee).

264. They are likely to have limited effect. For example in McDaniel v. Ritter, Justice Robertson cited section 146, but merely as authority for the proposition that the place of injury is relevant. See McDaniel v. Ritter, 556 So. 2d at 311, 315 n.11:

This is as good a point as any to note that Mitchell v. Craft did not declare the place of the accident irrelevant in the choice of law inquiry. The law of that state still controls the rights and liabilities of the parties, unless, with respect to the issue at hand, some other state has a more significant aggregate relationship. Restatement (Second) of Conflict of Laws § 146 (1971).

But section 146 did not seem to influence his evaluation of the relevant factors, nor did he give the place of the injury special weight as a contact.

265. Federal courts supposedly applying Mississippi choice-of-law rules have given far more weight to the Restatement Second rules selecting a place's law to apply absent more significant contacts elsewhere. The conflict between the presumption that forum law should apply and that the law of the place of the wrong apply has interpreted by federal courts to mean that the place of the wrong applies in tort cases. See Davis v. National Gypsum Co., 743 F. 2d 1132, 1133 (5th Cir. 1984). See generally Jackson, supra note ___, at §4:20 at 4-31 ("The presumptive rule, which was cited with approval in McDaniel v. Ritter, has generally been applied in cases by federal courts applying Mississippi's center of gravity approach to issues of product liability and negligence."), citing Allison v. ITE Imperial Corp., 928 F.2d 137 (5th Cir. 1991), Walls v. General Motors, Inc., 906 F.2d 143 (5th Cir. 1990), Wright v. Standard Oil Co., 470 F.2d 1280, 1284 (5th Cir. 1972), Bailiff v. Manville Forest Products Corp, 772 F. Supp. 1578 (S.D. Miss. 1991), Raynes v. Hassie-Hunt Trust, 595 F. Supp. 818 (S.D. Miss. 1984). See also Chapman v. Thrasher Trucking Co., 729 F. Supp. 510, 511 (S.D. Miss. 1990)(applying Mississippi choice-of-law rule and citing presumptive rule of Restatement (Second) § 175 to apply law of Louisiana, place of death, in action involving residents from different states arising from death of Mississippi resident); Crouch v. General Electric Co., 699 F. Supp. 585 (S.D. Miss. 1988)(applying Mississippi choice-of-law rules to select North Carolina law to govern tort claims brought by Alabama resident arising from death in North Carolina). But see Cross v. Cummins Engine Co., 993 F.2d 112, 115 (5th Cir. 1993)(observing that trial court had applied Mississippi choice-of-law rules had applied Tennessee law to products liability claims by Tennessee residents for injuries sustained in Mississippi where product was manufactured in North Carolina but installed and maintained in Tennessee but not deciding whether the choice of Tennessee law was erroneous when no party objected to its application); Beck by Chain v. Thompson, 818 F.2d 1204, 1208 (5th Cir. 1987)(holding under Mississippi choice-of-law rules that Mississippi wrongful death law governed case by Texas resident against estate of Mississippi resident for death that occurred in Arizona); Carney v. United States, 634 F. Supp. 648, 651 (S.D. Miss. 1986)(holding that Mississippi law applied where death occurred in Alabama but negligence occurred in Mississippi, decedent was from Mississippi, and relationship between parties was centered in Mississippi), aff'd without opinion sub nom. Carney v. Department of Transportation, 813 F.2d 405 (5th Cir. 1987); Perry v. State Farm Mut. Auto. Ins. Co., 606 F. Supp. 270, 274 (S.D. Miss. 1985)(observing presumption in favor of applying forum law, but holding that California law applied to issue of stacking in claims resulting from California resident's accident in Mississippi). Cf. McCain v. Cox, 531 F. Supp. 771, 779 (N.D. Miss.)(Keady, C.J.)(applying Mississippi law to land sale contract among residents from three states for sale of land in Mississippi and elsewhere, stating "we conclude that Mississippi law controls interpretation of the contract. '[I]n case of doubt as to whether the lex loci or the lex fori should govern, the court will naturally prefer the laws of its own state or country.' [Citing Craig v. Columbus Compress & Warehouse Co., 210 So. 2d 645, 649 (Miss. 1968).]"), aff'd without opinion, 692 F.2d 755 (5th Cir. 1982).

266. Mitchell v. Craft, 211 So. 2d at 512. See supra note ___.

267. 211 So. 2d at 516, quoting (with emphasis added, ellipses and citation omitted) Restatement (Second) of Conflict of Laws § 146. See supra note ___.

268. A decedent's son was entitled to recover applying Mississippi rules even though the son resided in Louisiana, had been adopted by an adoptive father there, and under the wrongful death laws of Louisiana could not recover. See Estate of Jones, 687 So. 2d 1171 (Miss. 1996). This was a hard case because the estranged son of the decedent by a prior marriage (referred to as "natural" in the opinion) recovered to the exclusion of any other family member. See also Warren v. Foster, 450 So. 2d 786 (Miss. 1984)(permitting wrongful death recovery by "son" subsequently adopted by adoptive father in Tennessee despite claim that child given up for adoption could not inherit under Tennessee law).

The court in Warren probably reached the right result but from the wrong direction, reasoning that the statutory beneficiary was entitled to recovery under choice-of-law rules governing intestate succession, citing "the general rule. . .that the law of the place where the property is situated or the law of the decedent's domicile controls the extent or the fact of the right of inheritance." 450 So. 2d at 787, quoted in Estate of Jones, 687 So. 2d at 1177. This is inaccurate to the extent that the Mississippi wrongful death statute identifies the proper parties rather than incorporating the laws of intestate succession, see Miss. Code Ann. § 11-7-13. Moreover, according to the Restatement Second, the preference is for the law of the place of wrongful death (not forum law), and this law can be displaced when another state has other more significant interests.

Accordingly, it is best to read the Mississippi cases narrowly. Despite the broad language in the opinions, they have in fact applied Mississippi law only when the deaths occurred in Mississippi, when the decedents were Mississippi residents, and when the estates were being administered in Mississippi. There may be cases in the future where decedents reside elsewhere or deaths occurred out of state in which the court may appropriately apply foreign law.

In Nailen v. Ford Motor Co., 873 F.2d 94, 96 (5th Cir. 1989), a federal court applying Mississippi choice-of-law rules concluded that a wrongful death action involving nonresidents should be governed by Alabama law because "absent the accident, all of the other contacts in this case point towards Alabama." 873 F.2d at 96 (quoting trial court opinion). On appeal the plaintiff focused exclusively on whether Mississippi's choice of Alabama law should include Alabama's choice-of-law rules. The court correctly held not. 873 F.2d at 96. But it is questionable whether the choice of Alabama law was right to begin with under Mississippi choice-of-law rules. The tort and death occurred in Mississippi. The parties were not all from Alabama. The defendant was incorporated in Delaware but engaged in systematic and continuous business ties in Mississippi as well as Alabama. Furthermore, though Alabama might have itself applied Mississippi law (under its lex loci conflicts principles), Mississippi might for its part correctly construe the case as a false conflict, for Alabama might have had no interest in having its shorter limitations period applied to bar claims by Alabama residents against non(Alabama)resident defendants.

269. Valley Forge Insurance Co. v. Strickland, 620 So. 2d 535, concerned disputes over coverage for damages suffered by a Louisiana resident's daughter in an accident in Mississippi. The insurer tendered its own policy limits for underinsured motorist coverage. But the insurer prevented the insured from recovering from the tortfeasor's insurer by refusing to waive subrogation claims. Moreover, the insurer commenced a declaratory judgment action in Mississippi. The insured raised the intentional tort claims as counterclaims.

At trial, the Chancellor found that Louisiana law would normally govern the torts but applied Mississippi law under the public policy exception. 620 So. 2d at 538. Applying Mississippi law, the Chancellor found against the insurer on the subrogation claims and in favor or the insured on the intentional tort counterclaims, awarding $1,000,000 punitive damages.

The Supreme Court affirmed but on the theory that Mississippi law governed intentional torts when the wrongful conduct occurred in the state rather than as a public policy exception. 620 So. 2d at 539.

270. Tattis v. Karthans, 215 So. 2d 685, 691 (Miss. 1968). This opinion cited Mitchell v. Craft but apparently thought that case's holding was limited to transitory common-law actions. The court's reasoning revealed a curious survival of pre-Mitchell ideas of territorially vested rights and relied on a presumption that the Mississippi legislation was intended to take effect only in state:

In the instant case no action arose in North Carolina under the law of that State, and we cannot create by statute a cause of action for another state. In the absence of a showing of a similar North Carolina statute, no cause of action was created by the words there spoken; in the absence of a cause of action, how can there be a choice-of-law or conflict-of-law problem?

Further, our Legislature in adopting [the statute at issue] was interested and empowered to act in reducing crime, preventing violence, and maintaining peace within its own borders, and not within other states, recognizing that such matters were within the province and power of each state.

215 So. 2d at 691.

271. The court has repeatedly stated its adoption of substantive rules of the road of the place of the accident, but it has usually done so in dictum--i.e., in cases where the Mississippi tort rules did not differ significantly. See Vick v. Cochran, 316 So. 2d at ___, Fells v. Bowman, 274 So. 2d at ___, Turner v. Pickens, 235 So. 2d at ___, Mitchell v. Craft, 211 So. 2d at ___. See generally Jackson, supra note ___, § 4:18 at 4-30 ("The general rule. . .is that a state where an automobile accident occurred should have its 'rules of the road' applied."). See also Wright v. Standard Oil Co., 470 F.2d 1280 (5th Cir. 1972). The Fifth Circuit, applying Mississippi choice-of-law rules, concluded that Mississippi law should determine whether a foreign resident mother's right to recover for injuries to son suffered in Mississippi should be reduced by the comparative negligence of the victim's father. 470 F. 2d at 1283. But the court did so because it concluded the residence of the parties was not important when the policy of the foreign statute limiting recovery was not to protect the marital relationship and because Mississippi would prefer forum law as qualitatively better.

272. The cases involve conflicts between comparative and contributory negligence and guest statute defenses. The Mississippi Supreme Court itself has not relied on a distinction between tort rules designed to reduce risks of injury and those that are designed to shift losses. The distinction between risk-reducing and loss-allocating rules has become popular in conflict of laws theory in the wake of interest analysis theory. But it should be noted that the distinction is dubious, because every loss-allocating rule that prevents recovery provides an incentive (in theory) for the potential plaintiff to take steps to reduce the risk of injury. Even guest statutes (in theory) give passengers a greater incentive to travel with safe drivers.

It will also be noted that guest statutes and contributory negligence have other features in common besides the fact that they might be characterized as loss-shifting rules. Both doctrines declined markedly during the twentieth century and are now in disfavor among both courts and scholars.

273. Fells v. Bowman, 274 So. 2d 109, 111 (Miss. 1973)(applying Mississippi comparative negligence in accident involving two Mississippi cars in Louisiana but applying Louisiana law to issue of negligence); Mitchell v. Craft, 211 So. 2d at 513, see supra note ___.

274. Turner v. Pickens, 235 So. 2d 272 (Miss. 1970) (applying Mississippi law and rejecting guest statute defense in personal injury actions arising out of single-car accident in Illinois where all parties were Mississippi residents). The court affirmed the trial court's application of Mississippi law, concluding that the result was required by the holding of Mitchell v. Craft, without addressing the fact that the legal issue in the previous had been comparative negligence:

In applying the law of this state the trial court correctly followed our holding in Mitchell v. Craft. . .wherein we modified the pre-existing rule which invariably applied the law of the place of injury and held that under factual situations such as in this case, the most substantial relationship of the parties s and the dominant interest of the forum required the application of Mississippi law.

235 So. 2d at 274.

275. It is not clear what the purposes of guest statutes are, but under the Restatement Second and other modern choice-of-law approaches foreign states are required to figure out the policies behind a statute that a state that enacted the statute would rarely if ever address. If the general policies of the guest statute are to prevent fraudulent litigation in the legislature's own state's court system, then Mississippi's disregard of the guest statute obviously would not frustrate the legislative purpose behind the statute. Other state courts have rejected application of foreign guest statutes in cases involving their own residents by concluding more problematically that the purpose of the statutes was to provide a defense only for resident defendants of the legislating state or that the legislating state had no legitimate interest in providing a defense to foreign resident defendants. See Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969)("Michigan has no interest in whether a New York plaintiff is denied recovery against a New York defendant where the car is insured here. . ."). This practice of limiting foreign interests to the protection of foreign residents is consistent with some scholarly theories of choice-of-law, notably Currie's theory of governmental interest analysis, see supra text at note ___, but it is objectionable on theoretical grounds because it encourages states to disregard the actual law other states in search of their constructive interests, and on practical grounds because it is uncertain and discriminatory in its application. See generally Lea Brilmayer, Conflict of Laws: Foundations and Future Directions 78, 232 (1991)[material altered in her 2d ed.]. But see generally Herma Hill Kay, "The Entrails of a Goat": Reflections on Reading Lea Brilmayer's Hague Lectures, 48 Mercer L. Rev. 891 (1997)(criticizing Brilmayer's critique of interest analysis).

276. Though the Mississippi courts have never announced a formal rule, Professor Jackson constructs a general rule from the cases: "[T]he general rule is that were all parties are domiciled in a single state, that state's law controls on loss distribution rules." Jackson, supra note ___, § 4:19 at 4-30. But this may be an overgeneralization. While Mississippi's law generally applies in cases involving Mississippi parties (when the foreign state has no interest in application of its law), it is not certain that foreign law should apply to cases arising in Mississippi involving nonresidents. Indeed, there is some authority to the contrary. Cf. Wright v. Standard Oil Co., 470 F.2d 1280, 1285 (5th Cir. 1972)(applying Mississippi law to issue of whether mother's right to recover for son's injuries were reduced by husband's comparative negligence in a case where all plaintiffs were foreign residents).

277. White v. Malone Properties, Inc., 494 So. 2d 576, 577, 580-81 (1986)(facts stated by both majority and dissenting opinions). The majority explained that Louisiana law because "it is obvious from the facts. . .that Louisiana has 'the most substantial relationship' to the action," and citing pre-Mitchell cases. 494 So. 2d at 578.

Justice Robertson concurred, objecting to the use of pre-Mitchell authority, see supra note ___, but finding "[a] balance of these significant contacts makes it apparent that Louisiana furnishes the center of gravity." 494 So. 2d at 581 (Robertson, J., concurring).

Gann v. Fruehauf Corp., 52 F.3d 1320, 1325 (5th Cir. 1995)(applying Mississippi choice-of-law rules), held that Washington law should apply to a wrongful discharge tort action and discounted the significance of the plaintiff's residence when the plaintiff had been a resident in and employed by defendant in Washington for several years and until three years before the termination.

278. In cases where the accident occurs in Mississippi, both of the rules of presumption identified in Mitchell v. Craft--forum law and the law of the place of the harm--indicate that Mississippi law should apply. See supra note ___.

279. See supra notes ___, ___. But see Nailen v. Ford Motor Co., 873 F.2d 94, 96 (5th Cir. 1989)(applying Alabama law in wrongful death action arising in Mississippi). Nailen is bad authority for Mississippi choice-of-law because Alabama law should probably not have applied. But for some reason the parties agreed at trial that Alabama law governed the case. The plaintiff's only argument (both at trial and on appeal) was that Alabama's whole law (including its choice-of-law rules which picked Mississippi law) should apply. See Nailen v. Ford Motor Co., 690 F. Supp. 552, 554 (S.D. Miss.), aff'd by, Nailen v. Ford Motor Co., 873 F.2d 94, 96 (5th Cir. 1989). The courts did not engage in a judicial choice of law, and the opinions' references to the Restatement Second are pure (and erroneous) dictum.

280. Restatement (Second) of Conflict of Laws § 6. See supra note ___.

281. Vick v. Cochran, 316 So. 2d 242, 246 (Miss. 1975). In that case the truck driver gave his brother-in-law a ride for personal reasons, knowing that his employer lumber company's policy prohibited riders. The plaintiff passenger, injured in Mississippi, brought personal injury actions against the driver for negligent driving and against the lumber company for negligent maintenance and loading of the truck. The company's alleged negligence took place in Alabama.

This case has been read a authority for the broad proposition that Mississippi applies the law of common domicile. See Jackson, supra note ___, § 4:19 at 4-30. But a close reading of the case shows that the exact meaning of its holding is far more cloudy.

From the start Vick was influenced by the Supreme Court's erroneous assumption that it lacked authority to dismiss under the doctrine of forum non conveniens. 316 So. 2d at 245. Cf. Missouri Pac. R.R. Co. v. Tircuit, 554 So. 2d 878, 881 n.1 (Miss. 1989)(criticizing Vick opinion's treatment of forum non conveniens). The court also confused factors (like the number of witnesses in Alabama) that would be relevant for dismissing but irrelevant to choice-of-law.

Moreover, the opinion's reasoning is in marked conflict with its holding. While the court broadly stated that Alabama law applied to (everything except the rules of the road and the statute of limitations), the only issued the court applied Alabama law was the passenger's claim against the driver's employer based on its alleged negligence in Alabama:

In the case now before the Court, the "center of gravity or of most substantial relationships" unquestionably is in Alabama, since the place of the accident was purely fortuitous and Mississippi's sole relation to the occurrence was, as was said in Mitchell, "purely adventitious." Not only do all of the parties, plaintiffs and defendant, and nine of the ten witnesses, reside at Hamilton, Alabama, but their status, and their relationships each with the other, were establish under agreements, express or impled, arrived at in the State of Alabama. The interstate trip on which they were engaged began and was to end in the State of Alabama. The loading, securing and weighing of the shipment took place at Hamilton. We have concluded that Alabama law, including the Alabama "guest statute," should govern as to all aspects of the case excepting that (1) Mississippi rules of the road should apply to questions of alleged negligence in the actual driving of the truck and (2) the period of limitations, by ancient precedent, is governed by the law of the forum.

Vick v. Cochran, 316 So. 2d at 246. The basic claim against the driver was resolved under Mississippi law--not under Alabama's guest statute, despite the fact that the guest statute is hardly a rule of the road. (Professor Jackson properly classifies it as a loss distribution rule, Jackson, supra note ___, at § 4:19.) Moreover, without recognizing any inconsistency, the court proceeded to rely also on Mississippi cases in concluding that the lumber company owed an uninvited guest of its employee no more than a duty to avoid injuring him willfully or wantonly. Id. at 248.

282. The court affirmed the judgment against the truck driver supported by simple negligence according to Mississippi law, disregarding any possible guest statute limitation: "In this situation, as to [the truck driver], [the plaintiff] was not a trespasser and proof of simple negligence on the part of [the driver], which proximately contributed to [plaintiff's] injury, was enough to require that the issue be submitted to the jury as to [the driver]." 316 So. 2d at 249.

283. There is little reason to suppose that either the deterrent or compensatory policies behind the Mississippi law of torts apply with less force to foreign resident plaintiffs. Older Mississippi cases did not distinguish between parties on the basis of their residence. On the contrary, a statutory right was assumed to extend to a nonresident when the statute did not clearly limited its application. Cf. Bolton v. Barnett, 95 So. at 726 ("This statute does not give the right of renunciation to only citizens of this state, but gives it to any husband or wife upon the probate of the will of the deceased.") See also Miss. Const. § 24("[E]very person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.").

Against the arguments based on policy must be reckoned Judge Barksdale's observation that "decisions subsequent to Mitchell appear to have given little, if any, actual weight to the policy considerations in § 6." Allison v. ITE Imperial Corp., 928 F.2d 137, 141 (5th Cir. 1991). See generally Jackson, supra note ___, § 4:11 at 4-17 (critical of lack of Mississippi supreme court's attention to policy issues). But where the accident occurs in state, the presumptive rules and "contacts" further support application of Mississippi law. But see Nailen v. Ford Motor Co., 873 F.2d 94, 96 (5th Cir. 1989)(applying Alabama law in wrongful death action arising in Mississippi suggesting that residence contacts outweighed accident contact). Nailen is bad authority for Mississippi and Restatement Second law for the reasons set forth supra note ___.

284. For example, it is doubtful that Alabama had any state interest in applying its guest statute to litigation arising from an accident in Mississippi. Alabama would apparently have applied Mississippi law under its rule of lex loci delicti. Etheredge v. Genie Industries, Inc., 632 So. 2d 1324 (Ala. 1994), Fitts v. Minnesota Mining & Mfg. Co., 581 So. 2d 581 (Ala. 1991). Although looking to Alabama's choice-of-law law at first seems to be a species of renvoi that is discouraged, see Restatement (Second) of Conflict of Laws § 8(1), the purpose of the analysis is not to reach the same result as Alabama but rather to weigh the strength of the Alabama policy in conflict with Mississippi's, which is permitted, id. § 8 comment k. See generally Egnal, The "Essential" Role of Modern Renvoi in the Governmental Interest Analysis Approach to Choice of Law, 54 Temple L.Q. 237 (1981)(supporting consideration of foreign choice-of-law rule to reveal lack of foreign interest in case); but see Von Mehren, The Renvoi and Its Relation to Various Approaches to the Choice-of-Law Problem, in XXth Century Comparative and Conflicts Law 393-94 (1961)(arguing that lex loci jurisdiction's choice-of-law does not identify its state interest).

Applying the Restatement Second, the Missouri Court of Appeals rejected a foreign guest statute defense that was raised in an accident that occurred in Missouri. Applying Missouri law rather than the law of the parties domicile, the court specifically relied on the fact that the defense would not have been applied by the domiciliaries' home court. Griggs v. Riley, 489 S.W.2d 469 (Mo. Ct. App. 1972)("...the interest in Illinois in that policy [behind the guest statute] has always extended only to its borders."). But see Nailen v. Ford Motor Co., 873 F.2d 94, 96 (5th Cir. 1989)(applying Alabama law in wrongful death action arising in Mississippi and rejecting arguments that Alabama would not apply its own law in case).

285. Allison v. ITE Imperial Corp., 928 F.2d 137, 139-45 (5th Cir. 1991). The court, after careful consideration of section 145 contacts and section 6 considerations, concluded that Tennessee had a strong interest in requiring litigation of products liability claims within a reasonable time and reducing manufacturer's costs, 928 F.2d at 144. It also suggested that Mississippi had policies in favor of permitting recovery for residents, id. But the court did not find that Mississippi's interests were greater than Tennessee's and applied Tennessee law as the place of the injury. See supra note ___ (questioning court's treatment of presumption).

The case is questionable authority for Mississippi, however, because (as in other federal cases) the Fifth Circuit gave decisive effect to the presumptive application of lex loci delicti, which does not apply to statutes of limitations and which the Mississippi Supreme Court has not found dispositive in any case. Moreover, the Fifth Circuit's evaluation of contacts and factors is problematic. For example, it gave special attention to § 6(g): "Applying the Tennessee statute of repose will result in § 6[(g)] 'certainty, predictability and uniformity of result,' and promotes important state policies." 928 F.2d at 144. According to the Restatement itself, however, section 6(g) is inapplicable in torts. Restatement (Second) of Conflict of Laws § 6 comment i; § 145 comment b; see infra note ___. So, too, it gave weight to the Tennessee policy of avoiding stale claims, but that state policy arguably has no importance in another state--especially in Mississippi where all matters of evidence are governed by forum law.

Interest analysis theorists would probably object that the Tennessee state interests identified by the Fifth Circuit were largely conjectural in a case involving application of the statute of repose to a nonresident. Mississippi's policies in contrast were substantial, and application of Tennessee's statute of repose completed frustrated Mississippi's policies of compensation, while application of Mississippi's statute of limitations to claims involving Mississippi residents injured by products manufactured outside Tennessee would not frustrate the general purposes of Tennessee's statute of repose.

286. Rieger v. Group Health Ass'n, 851 F. Supp. 788, 791-93 (N.D. Miss. 1994)(Davidson, J.).

287. 556 So. 2d 303 (Miss. 1989).

288. 556 So. 2d at 311.

289. 556 So. 2d at 308. Much of Speaks's activity in Mississippi was unrelated to the case but was sufficient to establish general jurisdiction. 556 So. 2d at 309.

290. 556 So. 2d at 305.

291. 556 So. 2d at 305.

292. 556 So. 2d at 305.

293. The trial court had granted a motion for a new trial, but the Supreme Court granted defendants' petition for interlocutory appeal. 556 So. 2d at 306. Three justices dissented from the decision to grant the appeal. 556 So. 2d at 31718 (Hawkins, P.J., dissenting).

294. The defendant's theory was that plaintiff's decedent, a trained pilot, assumed the risk by flying under hazardous weather conditions. Under the specific facts, including alleged continuing negligence by the pilot, the defense was not available under the law of Missouri, Tennessee, or Mississippi. 556 So. 2d at 315-16.

295. 556 So. 2d at 315

Mitchell v Craft and progeny again mandate that we seek Tennessee law, but when we do so we find a Tennessee choice of law rule that mandates enforcement of the law of the state where the accident occurred, the old lex loci rule, if you will. [Citations omitted.] The accident occurred in Missouri. That a Tennessee court would likely enforce a Missouri law does not control us; it is but a factor.

Of course this statement is purest dictum, inconsistent with the Restatement Second's own attempt to eliminate renvoi, see Restatement (Second) of Conflict of Laws §§ 8(1), 187(3)

296. Justice Robertson wrote:

Both in number and significance, the relevant 'contacts' considered as a whole suggest without serious doubt that, vis-a-vis Mississippi or Missouri, Tennessee is the state with the most significant relationship to the occurrence and the parties.

The Circuit Court erred when it held Mississippi law applicable to all issues in the case.

556 So. 2d at 303.

297. 556 So. 2d at 313:

Our first substantive question is whether [defendants] may be held liable vicariously for damages occasioned by [pilot's] neglect. The place of the accident and tortious conduct, i.e., Missouri, is certainly relevant [citations omitted]. If the party injured or killed had been a Missourian, that state's law would control [citations omitted]. We find a distinct and predominant Tennessee flavor emanating from the ownership, management, maintenance, lease and operation of the aircraft, and, as well, the Tennessee contacts noted above. On these facts one may but conclude that Tennessee law controls this particular issues [citation omitted]. The lone Mississippi contact with this issue is the presence of a Mississippi resident in the passenger's seat. This is not enough.

The holding in Hanley v. Forester, 903 F.2d 1030 (5th Cir. 1990), is not inconsistent. Applying Mississippi choice-of-law rules, the federal court held that Florida law governed the issue of a Mississippi resident's vicarious liability for the injuries caused by his son to a Louisiana resident in a car accident in Florida. 903 F.2d at 1033-34. But the court may have reached the right result but for the wrong reasons. In relying on Florida's purportedly "strong policy considerations regarding safety on its highways" behind its owner-liability law, 903 F.2d at 1033, the Fifth Circuit did not realize that application of this law probably had little effect on highway safety and was rather a loss-allocation rule. Nevertheless, under Justice Robertson's reasoning in McDaniel, it may make sense to apply the law of the place of the wrong to loss-allocation issues when parties do not share a common domicile.

298. The court looked to Tennessee workers compensation legislation under which the statutory remedy excluded tort liability. But the court applied Tennessee law in concluding that the Ritter and Speaks were engaged in a "frolic" outside the scope of employment at the time of death. 556 So. 2d at 314. The court also observed that Tennessee and Mississippi law did not conflict on this point. 556 So. 2d at 314 n.9.

299. At first he justified this preference for comparative negligence in language that looked like a public policy exception to the choice-of-law rules of the Restatement Second. See 556 So. 2d at 316 ("Notwithstanding that another state may have the most significant relationship to a given issue, we have expressed our reluctance to enforce the law of that state where such would be offensive to the deeply ingrained or strongly felt public policy of this state."). See infra notes ___. But he further explained that this result was consistent with the Restatement Second's direction to weigh the policies of the forum as well as with the application of qualitatively better rules that was described (or advocated) by certain scholars:

In Restatement parlance we act by reference to the "relevant policies of the forum" and the "basic policies underlying the particular field of law." Restatement (Second) of Conflict of Laws § 6(2)(b) and (e) (1971). Prof. Robert a Leflar's more brazen form of expressing the point would be that we enforce our comparative negligence rule because it is a "better rule of law," cited in Mitchell, 211 So. 2d at 514; see [Robert A.] Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif. L. Rev. 1584, 1587 (1966); see also [Alfred] Hill, The Judicial Function in Choice of Law, 85 Colum. L. Rev. 1585, 1618-19 (1985).

556 So. 2d at 316.

300. Justice Robertson noted, without giving any weight to, the fact that Tennessee enforced Mississippi's comparative negligence statute in a conflicts case. He suggested Tennessee courts may have preserved contributory negligence for reasons having nothing to do with their commitment to policies behind the rule:

Perhaps the Tennessee courts similarly recognize that comparative negligence is the better rule, believing only that implementation of the new regime is not within the judicial prerogative.

556 So. 2d at 317. The Tennessee Supreme Court adopted comparative negligence in a decision that both confirmed Justice Robertson's suspicion that Tennessee lacked a strong commitment to contributory negligence and refuted his suggestion that the Tennessee courts were powerless to adopt comparative negligence. Case ___

301. 556 So. 2d at 317, citing Fells v. Bowman, 274 So. 2d 109, 112-13 (Miss. 1973); Mitchell v. Craft, 211 So. 2d 509, 513-16 (Miss. 1968).

302. 556 So. 2d at 317.

303. 556 So. 2d at 317.

304. The opinion raises many new questions: 1) when Mississippi choice-of-law rules select the law of another state, does Mississippi look to the whole law, including the choice-of-law rules of that other state? 2) does Mississippi's application of comparative negligence in out-of-state accidents extend to nonresidents? 3) how important is the "business base" or center of a relationship when the parties travel elsewhere pursuant to their business or their relationship? 4) is the geographical center of a relationship or business activity important because of that place's interest in controlling extraterritorial aspects of the relationship, because the parties expected its law to govern, or because of some intuitive sense of lex loci?

305. It remains uncertain how far the rulings developed in guest statute or comparative negligence cases should extend to different areas. And even some of the simplest cases involving guest statutes or contributory negligence, issues addressed repeatedly by the Mississippi Supreme Court, are not clearly controlled by precedent. Examples include: a Mississippi guest injured by a foreign host in a foreign guest-statute state; a foreign guest injured by a Mississippi host when a guest statute provides a defense under the plaintiff's home law; a Mississippi victim partly at fault injured by a foreign defendant in defendant's home state when that state provides a defense of contributory negligence; a foreign plaintiff injured in Mississippi by a Mississippi tortfeasor when the plaintiff's home state provides a complete defense of contributory negligence.

306. For example, though federal courts are required to decide a conflicts case as would a Mississippi state court, federal courts have routinely avoided the comprehensive analysis of facts and interests made by Justice Robertson and have rather routinely applied the law of the place of the crash in most airplane tort cases. See Crouch v. General Elec. Co., 699 F. Supp. 585 (S.D. Miss. 1988); Cochran v. Rockwell Int'l Corp. 564 F. Supp. 237 (N.D. Miss. 1983), McAlpin v. James McKoane Enters, Inc., 395 F. Supp. 937 (N.D. Miss. 1975). But see Beck v. Thompson, 818 F.2d 1204 (5th Cir. 1987).

307. See Estate of Lawrence Thomas Jefferson, No. 95-CA-00226 COA, slip op. at 7 (Ct. App. Miss. Jan. 30, 1996)(not designated for publication and may not be cited pursuant to Miss. R. App. P. 35-B)("The 'most significant relationship rule' enumerated in Mitchell does not apply to the issues in the case sub judice because here we deal with contract law--and not tort law.").

308. Miss. Code Ann. § 75-1-105(1)("Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that law either of this state or of such other state or nation shall govern their rights and duties.")

309. Id. See Dunavant Enters., Inc. v. Ford, 294 So. 2d 788, 791 (Miss. 1974)(holding in absence of choice of law by parties that section 75-1-105(1) required application of Mississippi law in dispute arising from contract executed in Tennessee for cotton to be grown and delivered in Mississippi).

310. The language added to the statute is unique to Mississippi:

Provided, however, the law of the State of Mississippi shall always govern the rights and duties of the parties in regard to disclaimers of implied warranties of merchantability or fitness, limitations of remedies for breaches of implied warranties of merchantability or fitness, or the necessity for privity of contract to maintain a civil action for breach of implied warranties of merchantability or fitness notwithstanding any agreement by the parties that the laws of some other state or nation shall govern the rights and duties of the parties.

Miss. Code Ann. § 75-1-105(1). This provision has been criticized. See Janet Dixon McMurtray, Comment, A Constitutional Analysis of the Mississippi Commercial Code's Conflict of Laws Provision, 53 Miss. L.J. 619 (1983)(criticizing statute as applying Mississippi law regardless of state interest in case). And in a case where Mississippi had no significant contact or significant aggregation of contacts creating state interests, application of Mississippi law under this provision may be unconstitutional. See Price v. Litton Sys., Inc., 784 F.2d 600, 606 (5th Cir. 1986), on remand, Price v. International Tel. & Tel. Corp., 651 F. Supp. 706 (S.D. Miss. 1986), discussed in Jackson v. National Semi-Conductor Data Checker/DTS, Inc., 660 F. Supp. 65, 70 (S.D. Miss. 1986)(stating that application of Mississippi warranty law was unconstitutional when there was no reasonable or appropriate relation of underlying claim to Mississippi), Jackson v. National Semi-Conductor Data Checker/DTX, Inc., 660 F. Supp. at 70-71 (suggesting that application of longer Mississippi limitations period to breach of warranty claim arising out of state would be unconstitutional when claim had no reasonable or appropriate relation to state). But see Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988)(holding longer forum statute of limitations may constitutionally govern claims that have no relation to the state). See generally infra part VI(A).

311. These are listed in 75-1-105(2):

Where one of the following provisions of this code specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law (including the conflict of laws rules) so specified:

Rights of creditors against sold goods (Section 75-2-402).

Applicability of the chapter on Leases (Sections 75-2A-105 and 75-2A-106).

Applicability of the chapter on Bank Deposits and Collections (Section 75-4-102).

Letters of credit (Section 75-5-116).

Applicability of the chapter on Investment Securities (Section 75-8-110).

Perfection provisions of the chapter on Secured Transactions (Section 75-9-103).

Governing law in the chapter on Funds Transfers (Section-4A-507).

For example, issues concerning goods covered by a certificate of title are determined by the law (including the conflict of laws rules) of the state issuing the certificate of title until the certificate is surrendered or until a new certificate is issued by another state four months after the goods are removed from the state issuing the original certificate. Id. § 75-2A-105.

312. See supra note ___; see also Carroll v. Renich, 15 Miss. (7 Smedes & M.) 798, 804-05 (1846)("The law of the place of the contract must determine its validity, and govern the extent of its operation, unless it were made with a view to its execution elsewhere."), citing Story, Conflict of Laws.

313. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So. 2d 908, 911 (Miss. 1993)("[G]eneral rule is that courts will give effect to an express agreement that the laws of a specified jurisdiction shall govern."); Miller v. Fannin, 481 So. 2d 261, 262 (Miss. 1985). Federal courts applying Mississippi choice-of-law theory have regularly enforced contractual choice-of-law provisions. Herring Gas Co. v. Magee, 22 F.3d 603 (5th Cir. 1994)(enforcing noncompetition agreement in Louisiana under Mississippi law when contract selected Mississippi law to govern); Sorrels Steel Co. v. Great Southwest Corp., 906 F.2d 158 (5th Cir.), amended on other grounds, rehearing denied, 914 F.2d 695 (5th Cir. 1990); FMC Finance Corp. v. Murphree, 632 F.2d 413 (5th Cir. 1980); Union Sav. Am. Life Ins. Co. v. North Central Life Ins. Co., 813 F. Supp 481 (S.D. Miss. 1993), Bradley v. Old Republic Life Ins. Co., 712 F. Supp. 90, 93 (S.D. Miss. 1988). See generally Jackson, supra note ___, § 4:24 at 4-35 to 4-36.

314. Restatement (Second) of Conflict of Laws § 187 comment b:

A choice-of-law provision, like any other contractual provision, will not be given effect if the consent of one of the parties to its inclusion in the contract was obtained by improper means, such as by misrepresentation, duress, or undue influence, or by mistake. Whether such consent was in fact obtained by improper means or by mistake will be determined by the forum in accordance with its own legal principles. A factor which the forum may consider is whether the choice-of-law provision is contained in an "adhesion" contract. . .

315. The Restatement Second explains the preference:

Prime objectives of contract law are to protect the justified expectations of the parties and to make it possible for them to foretell with accuracy what will be their rights and liabilities under the contract. These objectives may best be attained in multistate transactions by letting the parties choose the law to govern the validity of the contract and the rights created thereby. In this way, certainty and predictability of result are most likely to be secured. Giving parties this power of choice is also consistent with the fact that, in contrast to other areas of the law, persons are free within broad limits to determine the nature of their contractual obligations

Restatement (Second) of Conflict of Laws § 187 comment e. This rationale shows how much modern choice-of-law rules for contracts reflect modern theories of contracts. It raises the question, however, of whether those rules are appropriate when conflicts arise between states, one of which, has fundamentally different legal ideas of contract law.

316. Restatement (Second) of Conflict of Laws § 187(1)("The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.").

This provision is, understandably, a source of consternation to Conflicts students. The comments actually add to the confusion. First they explain that this "is a rule providing for incorporation by reference and is not a rule of choice of law." Id. § 187 comment c. In order words it is a gap-filler intended to effectuate the parties' intentions. For example, payment pursuant to a contract that contains a choice of Mexican law must be tendered in pesos (if that is the contract law of Mexico), because the parties presumably intended that result and presumably could have written that requirement into a contract. But if the rule states no more than a rule of interpretation designed to effectuate intent, then it is not clear why the rule should not fall to other contrary evidence of intent.

The comments further explain that whether parties could have resolved an issue by explicit agreement is to be determined by the law of the state with the most significant relationship to the transaction and the parties. Id. § 187 comment c. The reason for this is not clear, and it seems in tension both with the interpretive purposes asserted for the rule and with the text of section 187, which invalidates a choice-of-law under the law of the state with the most significant relationship only when the parties could not have agreed to the issue. Id. § 187(2)(b).

317. The Restatement Second specifies that a substantial relationship of the parties or the transaction to the place chosen as a reasonable basis for the choice:

The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either

(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or

(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chose state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.

318. See Chase Bryan, Briefly Speaking: Business Contracts: Make 'Choices' in Advance, Mississippi Business J. 20 (Dec. 5, 1994)("[C]hoice-of-law provisions add certainty to transactions and should be included in contracts with out-of-state businesses. These provisions will determine which state's substantive law will govern a given contract. A choice-of-law provision will be enforced where there is some reasonable relationship between the state's law chosen and the transaction at issue in the litigation. This test usually is satisfied if some of the acts giving rise to the transaction occur in the state whose substantive law was chosen.")

319. Burger King v. Rudzewics, 471 U.S. 462, 481-82 (1984)(Michigan franchisees' choice of Florida law was a factor that the court considered in finding that the defendant had minimum contacts in Florida to support personal jurisdiction). This problem may be avoided by a forum selection clause, but not all courts will enforce such clauses. See infra notes ___ to ___ and accompanying text. Even if the forum selection clause is not itself enforced, the clause may rebut any inference about the parties' expectation of litigation and prevent the choice-of-law from establishing a contact supporting personal jurisdiction.

320. "The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6." Restatement (Second) of Conflict of Laws § 188(1). See supra note ___ (text of section 6).

321. Restatement (Second) of Conflict of Laws § 188(2):

In the absence of an effective choice of law by the parties (see § 187), the contact to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Mississippi cases cite and follow this section. See O'Rourke v. Colonial Ins. Co., 624 So. 2d 84, 86 (Miss. 1993) and Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1032 (Miss. 1985), answer conformed to, 768 F.2d 718 (5th Cir. 1985).

322. Id. § 188(3)("If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-99 and 203.")

323. Id. § 189:

The validity of a contract for the transfer of an interest in land and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the land is situated unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

324. Id. § 190:

The contractual duties imposed upon the parties to a deed of transfer of an interest in land are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the land is situated unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

325. Id. § 191:

The validity of a contract for the sale of an interest in a chattel and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where under the terms of the contract the seller is to deliver the chattel unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

326. Id. § 195:

The validity of a contract for the repayment of money lent and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that repayment be made, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

327. Id. § 196:

The validity of a contract for the rendition of services and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that the services, or a major portion of the services, be rendered, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

328. Id. § 192:

The validity of a life insurance contract issued to the insured upon his application and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the insured was domiciled at the time the polity was applied for, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

Id. § 193:

The validity of a contract of fire, surety or casualty insurance and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

Id. § 194:

The validity of a contract of suretyship and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the law governing the principal obligation which the contract of suretyship was intended to secure, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

329. Id. § 197:

The validity of a contract for the transportation of passengers or goods and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state from which the passenger departs or the goods are dispatched, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.

330. O'Rourke, 624 So. 2d at 86.

331. Boardman, 470 So. 2d at 1032. See also Ford v. State Farm Ins. Co., 625 So. 2d 792, ___ (Miss. 1993). Accord Moore v. United Servs. Auto. Ass'n, 808 F.2d 1147 (5th Cir. 1987), later proceeding, 819 F.2d 101 (5th Cir. 1987)(holding under Mississippi choice-of-law rules that Florida law prevented Florida residents from stacking uninsured motorist coverage in policy issued to them in Florida for damages sustained in accident in Mississippi); Nichols v. Anderson, 788 F.2d 1140 (5th Cir. 1986), appeal after remand, 837 F.2d 1372 (5th Cir. 1988); Maryland Cas. Co. v. Integrity Ins. Co., 693 F.2d 506 (5th Cir. 1982), Dees v. Hallum, 721 F. Supp. 789 (N.D. Miss. 1989)(holding under Mississippi choice-of-law theory and referring to Restatement Second section 93 that California law governed insurance agreement covering car rented in California); Perry v. State Farm Mut. Auto. Ins. Co., 606 F. Supp. 270 (S.D. Miss. 1985)(applying California law to prevent stacking of uninsured motorist coverage); Blue Bird Body Co. v. Ryder Truck Rental, Inc., 583 F.2d 717 (5th Cir. 1978).

See also Deramus v. Jackson Nat'l Life Ins. Co., 92 F.3d 274 (5th Cir. 1996)(holding that Mississippi law applicable under Mississippi "center-of-gravity" prevented insured's recovery from insurer based on insurer's failure to disclose positive HIV test results). In finding that Mississippi law governed, however, the Fifth Circuit only made reference to the "center-of-gravity," not the place where the risk was located. But the opinion refused to identify the plaintiff's and decedent's place of residence or citizenship, apparently in order to preserve anonymity. E.g., 92 F.3d at 275.

332. Spragins v. Louise Plantation, Inc., 391 So. 2d 97, 100 (Miss. 1980).

333. Estate of Lawrence Thomas Jefferson, No. 95-CA-00226 COA, slip op. at 7 (Ct. App. Miss. Jan. 30, 1996)(quoting Restatement (Second) of Conflict of Laws § 214(1) that 'obligations of the maker of a note. . .are determined. . .by the local law of the state designated in the instrument as the place of payment.'").

The note in the case was executed by a Mississippi resident living in Alaska, made payable in Alaska to Alaska residents, and secured by real property in Mississippi. The payor's estate challenged the note's 30 per cent interest as usury under Mississippi law. The Chancellor, applying the balancing approach of the Restatement Second concluded that Mississippi law applied. The Court of Appeals reversed, suggesting that the interest may not have been invalid under Mississippi law and concluding in any event that Alaska law governed.

The appellate court did not cite the Restatement provision that specifically covers usury. Id. § 203 ("The validity of a contract will be sustained against the charge of usury if it provides for a rate of interest that is permissible in a state to which the contract has a substantial relationship and is not greatly in excess of the rate permitted by the usury law of the state of the otherwise applicable law under the rule of § 188).

A similar result was reached in FMC Finance Corp. v. Reed, 592 F.2d 238, 241-42 (5th Cir. 1979). Applying Mississippi choice-of-law rules, the court concluded that the contract was governed by California usury law. California contacts predominated; it was where the finance agreement was negotiated, where formal documentation was mailed from and returned to California, and where payment was paid. The only Mississippi contacts were the residence of borrower and location of some property subject to security interest in Mississippi. But the federal court rested its holding neither on section 214(1) nor the section dealing specifically with usury. Instead it applied a balancing approach and found that enforcing the contract under California law promoted the expectations of the contracting parties.

334. Spragins, 391, So. 2d at 100, repeated in Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 458 (Miss. 1983).

335. Restatement (2d) conflict of Laws § 204:

When the meaning which the parties intended to convey by words used in a contract cannot satisfactorily be ascertained, the words will be construed

(a) in accordance with the local law of the state chosen by the parties, or

(b) in the absence of such a choice, in accordance with the local law of the state selected by the application of the rule of § 188.

The rule's complexity results from the words (themselves in need of construction) that direct a reference to foreign law only when the parties' meaning otherwise "cannot be satisfactorily ascertained." Id.

336. Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024 (Miss. 1985), answer conformed to, 768 F.2d 718 (5th Cir. 1985), dictum notwithstanding, did not, for the reasons given, supra note ___, concern choice-of-law with respect to rules of construction, as there was neither an ambiguity in the contract requiring construction, nor a conflict among the states' law of construction requiring a choice of law.

337. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So. 2d 908, 912-13 (Miss. 1993). The court looked to New York cases in interpreting an arbitration clause in the contract but found that it was waived.

338. See supra notes ___ to ___ and accompanying text.

339. For example, in Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So. 2d at 912-13, the court looked to New York law for the principles that 1) words and phrases must be given their plain and ordinary meaning; 2) ambiguous language in a contract must be construed against the party who drafted the language; 3) when there is uncertainty, judicial construction should produce reasonable results; 4) time limits should be reasonable. These general principles accord with Mississippi law and are reasonable because designed to effectuate the parties' intent. But if foreign rules of construction were unreasonable or did not effectuate the parties' intent, applying them would be unfair.

340. Cf. McCain v. Cox, 531 F. Supp. 771, 779 (N.D. Miss.)(Keady, C.J.)(applying Mississippi law to interpretation because Mississippi was the place of litigation), aff'd without opinion, 692 F.2d 755 (5th Cir. 1982).

341. Permissive forum selection clauses, or agreements to submit to a court's jurisdiction, have long been enforced and are generally constitutional (even in the absence of other contacts that would make the court a fair forum). E.g., National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964). See generally Richman & Reynolds, supra note ___, § 30[c][2] at 76-79.

The more difficult issue is whether mandatory forum selection clauses will be enforced--that is, whether a court that otherwise has jurisdiction will honor the parties choice of forum by dismissing the action or perhaps even entering an order requiring litigation in a foreign court.

342. The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972) ("[S]uch clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances. . .is the correct doctrine to be followed by federal district courts sitting in admiralty."); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, (1992)(enforcing boilerplate forum selection clause contained in cruise tickets in personal injury action brought within admiralty jurisdiction). See generally Scoles & Hay, supra note ___, § 11.4 at 362-64; Weintraub, supra note ___, § 4.35 at 223-26. For cases refusing to enforce particular forum selection clauses as unreasonable, see id. at 224-25 n.32.

343. Compare Jones v. Weibrecht, 901 F.2d 17 (2d Cir. 1990), Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 512 (9th Cir. 1988)(implementing federal policy in favor of forum selection clauses) and Nutter v. Rents, Inc., 1991 U.S. App. LEXIS 22952 at ** 14-15 (4th Cir. Oct. 1, 1991), Alexander Proudfoot Co. World Headquarters v. Thayer, 877 F.2d 912 (11th Cir. 1989)(holding that Erie requires application of state law regarding enforceability of forum selection clause in absence of federal statute or rule). See generally Scoles & Hay, supra note ___, § 11.5 at 363-64.

344. International Software Systems, Inc. v. Amplicon, 77 F.3d 112, 113, 115 (5th Cir. 1996)(holding that federal not state law determined enforceability of forum selection clause and affirming dismissal of action where parties had agreed to litigate exclusively in California state courts).

345. Stewart Organization, Inc., v. Ricoh Corp., 487 U.S. 22 (1988)(granting motion to transfer under § 1404(a) to federal district that parties selected in contract notwithstanding invalidity of forum selection agreement under law of state where district court sat). The Supreme Court emphasized, however, that it was not holding the forum selection enforceable under federal judge-made policies but under the statute. 487 U.S. at 32. Cf. 28 U.S.C. § 1404(a)("For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.").

346. Calda & Sons, Inc. v. Willingham, 17 F.3d 123, 127 (5th Cir. 1994); Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 957 (5th Cir. 1974).

347. The Restatement Second directs the enforcement of forum selection clauses unless unfair or unreasonable. Restatement (2d) Conflict of Laws § 80 (1988 Supp.)("The parties' agreement as to the place of the action will be given effect unless it is unfair or unreasonable.").

Mississippi courts have not yet relied on this section, and it is uncertain whether they would follow it. "The [Mississippi] Supreme Court has not indicated that the entire Second Restatement has been adopted as controlling law in Mississippi's choice of law cases." Jackson, supra note ___, § 4.1 at 4-3 n.5.

Although the Mississippi Supreme Court has adopted the Restatement Second's provision on forum non conveniens, Restatement (Second) of Conflict of Laws § 84, Shewbrooks v. A.C. & S., Inc., 529 So. 2d 557, 561 (Miss. 1988), the actual influence of the Restatement Second is uncertain, because forum non conveniens had been approved in numerous prior Mississippi cases. See Missouri Pacific R. Co. v. Tircuit, 554 So. 2d 878, 881 (Miss. 1989)(citing line of Mississippi cases going back to 1943 that approved of forum non conveniens). The Supreme Court has not followed other parts of the Restatement Second when its treatment does not satisfactorily promote Mississippi state policies, deviating, notably, in applying Mississippi law to matters of remedy and when public policy requires, see supra text at notes ___ and ___.

348. See generally Francis M. Dougherty, Annotation, Validity of Contractual Provision Limiting Place or Court in Which Action May Be Brought, 31 A.L.R.4th 404-45 (1984)(cumm. supp).

349. See generally The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9 n.10 (1972)(discussing historical reluctance of courts to enforce forum selection clauses).

350. Miss. Code Ann. § 15-1-5 ("The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contracts stipulation whatsoever shall be absolutely null and void, the object of this section being to make the period of limitations for the various causes of action the same for all litigants.").

351. Miss. Code Ann. § 75-1-105(1), see supra note ___.

352. See supra notes ___ to ___ and accompanying text.

353. See supra note ___.

354. Missouri Pac. R.R. Co. v. Tircuit, 554 So. 2d 878, 883 (Miss. 1989); Shewbrooks v. A.C. & S., Inc., 529 So. 2d 557, 561 (Miss. 1988).

355. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 597-98 (1991)(Stevens, J. dissenting)(appending copy of ticket showing forum selection clause was deeply imbedded in fine print boilerplate language that consumer of services almost certainly would not have read).

356. First Mississippi Corp. v. Thunderbird Energy, 876 F. Supp. 840 (S.D. Miss. 1995)(Barbour, J.).

357. E.g., Patrick J. Borchers, Forum Selection Clauses in the Federal Courts After Carnival Cruise: A Proposal for Congressional Reform, 67 Wash. L. Rev. 55 (1992); Jeffrey A. Liesemer, Note, Carnival's Got the Fun. . .and the Forum: A New Look at Choice-of-Forum Clauses and Unconscionability Doctrine After Carnival Cruise Lines, Inc. v. Shute, 53 U. Pitt. L. Rev. 1025 (1992), Linda S. Mullenix, Another Easy Case, Some More Bad Law: Carnival Cruise Lines and Contractual Personal Jurisdiction, 27 Tex. Int'l L.J. 323 (1992), William M. Richman, Carnival Cruise Lines: Forum Selection Clauses in Adhesion Contracts, 40 Am. J. Comp. L. 977 (1992).

358. See supra text at note ___.

359. This argument was given much weight by the Supreme Court. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, ___ (1991).

360. Justice Stevens bluntly compares forum selection clauses to clauses limiting liability and explains their common purpose is "designed to put a thumb on the [defendant] carrier's side of the scale of justice." Carnival Cruise Lines v. Shute, 499 U.S. at 600 (Stevens, J., dissenting).

361. See Miss. R. Civ. P. 1 ("These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.").

362. O'Rourke v. Colonial Ins. Co. of California, 624 So. 2d 84, 88 (Miss. 1993). See also Laskosky v. Laskosky, 504 So. 2d 726, 731 (Miss. 1987)(observing in dictum that court would not recognize Canadian support or custody decree that was not in child's best interests).

363. Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1031 (Miss. 1985).

364. The Mississippi Supreme Court has identified sources of public policy:

[T]his court is committed to the doctrine that the public policy of the state must be found in its constitution and statutes, and when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials.

King v. City of Jackson, 667 So. 2d 1315, 1316 (Miss. 1995). Justice Cardozo's formulation is cited frequently by treatises:

The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.

Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 120 N.E. 198, 202 (1918)(Cardozo, J.). See generally Richman & Reynolds, supra note ___, § 59 at 159-61.

365. Estate of McNeal, 254 So. 2d at 524-25. The court in asserting the strength of the policy behind the common-law familial immunities, 254 So. 2d at 522-25, did not suggest those policies were reduced because the parties were residents of another state that did not recognize the immunities.

366. Restatement of Conflict of Laws § 612 ("No action can [sic] be maintained upon a cause of action created in another state the enforcement of which is contrary to the strong public policy of the forum."). The Restatement cautioned that "mere difference between the laws of the two states will not render the enforcement of a cause of action created in one state contrary to the public policy of the other," id. § 612 comment b, and emphasized that "application of this Section is extremely limited," id. § 612 comment c. Older cases refused to extend public policy to strike defenses raised under foreign law even when the defenses were deeply repugnant to forum policy, e.g., Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N.Y. 474, 14 N.E.2d 798 (1938)(refusing to strike a defense in a wrongful discharge action that Nazi laws required firing Jewish employees).

367. Restatement (Second) of Conflict of Laws § 6(b). The comments explain more fully:

Every rule of law, whether embodied in a statute or in a common law rule, was designed to achieve one or more purposes. A court should have regard for these purposes in determining whether to apply its own rule or the rule of another state in the decision of a particular issue. If the purposes sought to be achieved by a local statute or common law rule would be further by its application to out-of-state facts, this is a weighty reason why such application should be made. On the other hand, the court is under no compulsion to apply the statute or rule to such out-of-state facts since the originating legislature or court had no ascertainable intentions on the subject. The court must decide for itself whether the purposes sought to be achieved by a local statute or rule should be furthered at the expense of the other choice-of-law factors mentioned in this Subsection.

Id. § 6 comment e.

368. E.g., Richman & Reynolds, supra note ___, § 59 at 160 ("Fortunately, both the Restatement (Second) and other modern forms of choice of law analysis (more or less) successfully direct attention to the real questions that a court should ask in this are: How do we know what our policy is here, and why does a foreign law offend that policy?").

369. See Justice Robertson's discussion of this:

Every choice of law problem, by definition, arises out of a situation where the substantive law of the competing state differs from that of this state. Because of this and because every law of this state presumably reflects the public policy of this state, we are caught in a Catch-22. The way out is recognition that some of our laws reflect public policies which are more fundamental and more inviolable than others. Some of our laws reflect public policies more strongly felt and more deeply ingrained than others.

Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1038-39 (Miss. 1985).

370. O'Rourke v. Colonial Ins. Co., 624 So. 2d 84, 89 (Miss. 1993). Justice McCrae (joined by Justice Sullivan) dissented, arguing that Mississippi's strong policy in favor of stacking supported application of Mississippi law and pointing out that the result might differ if the passenger had been a resident of another state. 624 So. 2d at 90 (McCrae, J., dissenting).

371. The clause excluded recovery under the policy's uninsured motorist coverage to an insured who was driving an uninsured car owned by the insured or his or her relative. Boardman, 470 So. 2d at 1029 (quoting contract).

372. Boardman, 470 So. 2d at 1039.

373. Justice Robertson, for example, viewed the judicial task as requiring an accommodation of the public policy behind the prohibition of the exclusion and the policy or effectuating the reasonable expectations of contracting parties. 470 So. 2d at 1038 ("This question is not, what would be the public policy of this state regarding an exclusion such as that claimed here were the insureds Mississippians. Rather, the question is whether we have a public policy which is so strong that it would override the reasonable expectation (if they thought about it) of both [the insurer] and [the car owner] that at the very least the coverage questions arising with respect to their contract would be governed by the law of Nebraska."). Justice Robertson did not explain why a Mississippi policy designed to frustrate intent should be given less weight in cases with out-of-state parties, nor why the state law the parties wanted to govern should matter when the parties clearly expressed their intent to exclude the coverage at issue.

If Mississippi's purpose was to prevent unconscionable contracts, then its policy would, perhaps, not require its application to out-of-state contracts. On the other hand, if the purpose was simply to provide coverage (as seems more likely), then it is hard to understand why that policy did not require its application to a injuries suffered as a result of an accident in Mississippi suffered by an insured who was living and working in Mississippi.

374. McDaniel v. Ritter, 556 So. 2d at 316-17. See supra note ___.

375. Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1039 (Miss. 1985)("Mississippi's comparative negligence and intra-family tort immunity rules reflect longstanding public policies that may be said to be fundamental. Enforcement of the contrary rules. . .would be offensive to our sense of justice.").

376. This is the reasonable conclusion of Judge Davidson. Rieger v. Group Health Ass'n, 851 F. Supp. 788, 791 (N.D. Miss. 1994)(applying Mississippi comparative negligence in medical malpractice claim brought for malpractice in Maryland, which retained contributory negligence). Rieger presented more complicated facts, creating a basis for arguing Mississippi had contacts creating an state interest in application of it law. For example, the plaintiff had been a Maryland resident at the time of her original treatment and later moved to Mississippi, commencing the action while a Mississippi resident. She later moved to Pennsylvania. 851 F. Supp. at 789, 790 n.1. The opinion is not clear, but it is possible that some of the plaintiff's own behavior establishing a ground for reducing or barring recovery, her failure to follow health care instructions, may have occurred in Mississippi. But the court paid no attention to the contacts with Mississippi, holding broadly that comparative negligence must apply because contributory negligence violated Mississippi public policy. 851 F. Supp. at 791.

377. See generally Richman & Reynolds, supra note ___, § 58 at 155-59; Weintraub, supra note ___, § 3.3 at 66-71; Scoles & Hay, supra note ___, § 3.13 at 67-72.

378. Restatement (Second) of Conflict of Laws § 8(1) provides: "When direct by its own choice-of-law rule to apply "the law" of another state, the forum applies the local law of the other state. . ."). There are two exceptions: 1) when the objective of the choice-of-law rule is uniformity and 2) when all courts of interested states would apply some local law and the forum has no interest in applying another. Id. § 8(2)&(3). The exceptions are broader than often supposed and may, for example, require renvoi in all cases involving false conflicts.

379. See Nailen v. Ford Motor Co., 873 F.2d 94, 96 (5th Cir. 1989)(refusing to accept renvoi argument).

380. See McDaniel v. Ritter, 556 So. 2d 303 (Miss. 1989), discussed supra note ___.

381. U.S. Const. amend. X; 28 U.S.C. § 1652; Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 491 (1941)(choice-of-law rules are substantive under Erie analysis); Erie R.R. Co. v. Tomkins, 304 U.S. 64 (1938); Nailen v. Ford Motor Co., 873 F.2d 94, 96 (5th Cir. 1989); Price v. Litton Sys., Inc., 784 F. 2d 600, 602 (5th Cir. 1986); Wright v. Standard Oil Co., 470 F.2d 1280, 1284 (5th Cir. 1972); Alabama Great S.R.R. v. Allied Chem. Corp., 467 F.2d 679 (5th Cir. 1972); Sampson v. Channell, 110 F.2d 754 (1st Cir. 1940). See generally Jan P. Patterson, Comment, State or Federal Law in Federal Courts: The Rise and Fall of Erie, 42 Miss. L.J. 89, 93-94 (1971). Accordingly, federal courts in Mississippi will act exactly like Mississippi state courts in deciding choice-of-law issues, unless the action in pending in federal court in Mississippi because it was commenced in another state and transferred here under 28 U.S.C. § 1404(a), in which case the federal court must apply the state law, including the conflicts-of-law law, of the state in which the transferring court sat, Ferens v. John Deere Co., 494 U.S. 516, 532 (1989)(holding that transferee court must apply state conflicts law of state in which transferring court sat); Van Dusen v. Barrack, 376 U.S. 612 (1964). Actions transferred to federal courts in Mississippi from districts in other states under 28 U.S.C. § 1406 would be governed by Mississippi choice-of-law rules. In Piper Aircraft Co. v. Reyno, 454 U.S. 235, --- n.8 (1981), the Supreme Court noted with apparent approval the trial court's conclusion that the state law of the transferring district applied to the case transferred pursuant to section 1404(a) transfer while the state law of the transferee district applied to the case transferred pursuant to section 1406. The Court held that the trial court did not abuse its discretion in granting a dismissal on grounds of forum non conveniens supported in part by the trial court's finding that the complexity in applying two different foreign laws in the case established a valid public interest in favor of granting forum non conveniens.

It has been argued that when federal courts decide state claims under state law but exercise broader jurisdiction over claims or parties that the state court could exercise--for example when exercising federal interpleader jurisdiction or when parties are served pursuant to federal personal jurisdictional rules that are broader than the state's--that the federal courts should;

be free to depart from those [state choice-of-law] rules if it sees fit to do so. The federal court should act as a responsible neutral forum. A neutral forum should not apply its own choice-of-law rule if that rule differs from the rule in all states that have contacts with the parties and with the event and all contact states would reach an identical result.

Weintraub, supra note ___, § 10.7A at 607, id. §§ 10.7B-10.7C at 607-08. This proposal is inconsistent with cases, e.g., Griffin v. McCoach, 313 U.S. 498 (1941)(holding that interpleader action was governed by state law of state in which federal court was sitting), and there is no authority yet for this proposed practice. But some scholars think the inconsistent case law should be overruled. Scoles & Hay, supra note ___, § 3.43 at 123-24; Richman & Reynolds, supra note ___, § 104 at 305.

The scholars may be right in theory. But there are two arguments in favor of rigid adherence to the rule that federal courts should apply the state choice-of-law rules of the state in which they sit even when exercising broader jurisdiction than the state court could. First, reference to state law is simpler than developing new special federal choice-of-laws rules to apply in such cases. And there is no reason to believe that federal courts would arrive at any better method for choosing among conflicting state laws than the states themselves. On the contrary, this is an area where state judges have considerable experience, and, federal judges, none.) Second, it is doubtful that Congress meant to displace the normal operation of the Erie doctrine when it extended federal jurisdiction to confront special problems (unrelated to choice of law); accordingly, the choice-of-law rules of the state in which the federal court sits should still apply under the Rules of Decision Act, 28 U.S.C. § 1652 ("The laws of the several states, except where the Constitution or treatises of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."). The American Law Institute, in proposing nationwide federal jurisdiction, proposed that the federal courts be empowered to decide what state law to apply, see Weintraub, supra note ___, § 10.7C at 608, but no federal statute or rule has contained such language.

382. Two of the most carefully reasoned federal decisions in the area reveal this tendency. Judge Davidson, rejecting an argument that Mississippi public policy should deny enforcement of a limit on noneconomic damages under foreign law, relied specifically on the lack of direct authority on point, placing the burden on plaintiff to identify "tangible support" in the form of state court cases that Mississippi would reject foreign caps on noneconomic damages and rejecting as "speculative" the sort of policy arguments that might have been received favorably by a state court. Rieger v. Group Health Ass'n, 851 F. Supp. 788, 793 (N.D. Miss. 1994). The plaintiff was unable to surmount the handicap imposed by a case of first impression:

Mississippi has never had the opportunity to explore the constitutional or public policy ramifications of another jurisdiction's cap on damages. While that day may well present itself in the future, it has not occurred at this time.

851 F. Supp. at 792.

Likewise Judge Barksdale refused to give greater weight to the Mississippi policy favoring recovery for victims of tort (perhaps, especially when the victims are Mississippi residents), and the declared Mississippi policy of applying forum remedial laws in product liability cases, instead applying Tennessee's statute of repose, Allison v. ITE Imperial Corp., 928 F.2d 137 (5th Cir. 1991).

383. E.g., Allison v. ITE Imperial Corp., 928 F.2d at ___ (applying Tennessee statute of repose when both Mississippi and Tennessee had interests because injury occurred in Tennessee). But see Gann v. Fruehauf Corp., 52 F.3d 1320 (5th Cir. 1995)(holding under Mississippi choice-of-law rules that place of employment and most wrongful conduct should apply rather than place where employee was terminated in wrongful discharge case). The court evaluated the state interests and concluded that Washington's law was not offensive to Mississippi, 52 F.3d at 1325 n.4, that nonapplication of Washington law would unnecessarily frustrate its state interest while not significantly advancing any important Mississippi interest. 52 F.3d at 1325.

384. Erie R.R. Co. v. Tomkins, 304 U.S. 64, ___ (1938).

385. The federal courts may rightly protest that the problem lies with the lack of precise rules articulated by the Mississippi Supreme Court. But Mississippi is not required to develop such precise rules for the convenience of federal courts, and the whole point of the Restatement Second approach (for better or worse) is to avoid rigid rules. The federal courts' desire for such rules, and the de facto emergence of a separate body of federal choice-of-law rules in Mississippi may represent an unconstitutional exercise of federal judicial rule-making authority. Cf. U.S. Const. amend. X, Erie R. R. Co. v. Tomkins, 304 U.S. 64 (1938)(holding there is no constitutional authority for federal general common law making authority). But see id., 304 U.S. 64, ___ (Reed, J., concurring in result only on statutory grounds).

The tension between the state courts' effort to elaborate a coherent body of choice-of-law law rooted in accommodating state policies and the federal courts' penchant for specific (predictable) rules seems to reflect an underlying tension between demands for coherence and determinacy that may not be reconcilable. See generally William A. Edmundson, The Antinomy of Coherence and Determinacy, Iowa L. Rev. 1-20 (1996).

386. See supra notes ___ to ___ and accompanying text.

387. E.g., 28 U.S.C. § 1652 (state law to provide rules of decision in cases where they apply), 28 U.S.C. § 1962 (effect of federal judgment as property lien in accord with state law), 28 U.S.C. § 2007 (abolishing imprisonment for debt where such imprisonment abolished by state law and adopting state law regarding jail privileges for imprisoned debtors), 42 U.S.C. § 1988 (state remedies to supplement federal in civil rights cases), Fed. R. Civ. P. 4(k)(1)(adopting reach of state long-arm jurisdiction of state where sitting), id. 4(e)(adopting method of service of state where court sits or state where service made), id. 4(g)(adopting state requirements for service upon infants and incompetents); id. 17(b)(capacity of individual to be party determined by law of his or her domicile, of corporation by law of place of incorporation, of others by law where district court sits except for partnership, id. 28(a)(deposition to be taken before person appointed by court or person authorized to administer oaths by law of United States or law of place of deposition), id. 62(f)(adopting law of state where court sits regarding stays of execution when judgment operates as property lien); id. 64 (state law governs pre-judgment arrest or attachment of property); id. 69(a)(adopting state law for execution of judgments); id. 71A(k)(adopting state rules regarding trial by jury in actions under state eminent domain power), Fed. R. Evid. 302 (state law governs effect of presumption effecting burden of establishing claim or defense for cases based on state law), id. 501 (state law of privilege applies in cases based on state law).

388. The Federal Torts Claim comprises a limited waiver of federal sovereign immunity "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346.

389. The Supreme Court found the word "law" in the Federal Torts Act, id. ambiguous because it might mean 1) the whole law, or local law and the conflict of laws rules, of the place of negligence or 2) the internal law of the place of negligence. It held, "we conclude that a reading of the statute as a whole, with due regard to its purpose, requires application of the whole law of the State where the act or omission occurred." Richards v. United States, 369 U.S. 1 (1962).

390. E.g., Carney v. United States, 634 F. Supp. 648, 650 (S.D. Miss. 1986), aff'd without opinion, 813 F.2d 405 (5th Cir. 1987)..

391. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 308-09 (1970); Lauritzen v. Larsen, 345 U.S. 571, 583-91 (1953); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir. 1995).

392. Coats, 61 F.3d at 1119, quoting Fogelman v. ARAMCO, 920 F.2d 278, 282 (5th Cir. 1991). Thus place of the tort, allegiance or domicile of the plaintiff, and place of contract are more important in claims arising from injuries suffered in connection with offshore oil production than in traditional "bluewater" shipping case. 5 F.3d at 887 (holding that United States law applied to claims arising from injuries suffered in United Arab Emirates waters where allegiance of plaintiff and defendant shipowner pointed to United States, plaintiff was recruited in United States and supervised by United States citizen employees, contract was entered into in United States).

393. See supra notes ___ to ___ and accompanying text.

394. See supra notes ___ to ___ and accompanying text.

395. See supra notes ___ to ___ and accompanying text.

396. U.S. Const. amend XIV § 1 ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . ."); U.S. Const. amend V ("[N]or shall any person. . .be deprived of life, liberty, or property, without due process of law. . ."); Miss. Const. art. III, § 14 ("No person shall be deprived of life, liberty, or property except by due process of law.").

397. Home Ins. Co. v. Dick, 281 U.S. 397 (1930)(holding that due process prevented Texas from applying its statutory policy against contracts for shorter limitations in a lawsuit stemming from a fire insurance contract entered into in Mexico by Mexican parties to cover a vessel operated in Mexican waters). The only Texas contact was the fact that the insurance policy has been assigned to a nominal Texas resident. Quasi in rem jurisdiction was obtained in Texas by attaching the insurer's reinsurers.

398. See Hartford Accident & Indem. Co. v. Delta & Pine Land Co., 292 U.S. 143, 149-50 (1934)(holding that Mississippi could not apply its own statute to invalidate contractual rights that vested elsewhere); New York Life Insurance Co., v. Dodge, 246 U.S. 357 (1918)(holding that due process prevented Missouri from applying Missouri nonforfeiture statute to insurance policy accepted in New York); but see Mutual Life Ins. Co. v. Liebing, 259 U.S. 209 (1922)(holding that Missouri nonforfeiture clause could be applied but only because loan to which it applied had been formed in Missouri).

399. See supra note ___.

400. John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178 (1936)(holding under full faith and credit clause that Georgia state court could not apply forum law and leave issue of fraud to jury when New York law, where insurance policy was issued and where insured resided at the time of contract, insured's concealment of illness provided complete defense). See Scoles & Hay, supra note ___, § 3.28 (discussing case). For discussions of the history of the Court's constitutional choice-of-law jurisprudence, see id. §§ 3.20-3.25 at 78-93. See generally Richman & Reynolds, supra note ___, §§ 91-93 at 269-74; Weintraub, supra note ___, § 9.2A at 512-25; Ralph U. Whitten, The Constitutional Limitations on State Court Jurisdiction: A Historical-Interpretive Reexamination of the Full Faith and Credit and Due Process Clauses, 14 Creighton L. Rev. 499 (1981), Ralph U. Whitten, Constitutional Limitations on State Choice of Law: Full Faith and Credit, 12 Mem. St. U. L. Rev. 1 (1981)

401. Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939)(holding that state where accident occurred could apply its law instead of workers compensation law of state of employment), Alaska Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532 (1935)(holding that state where employment relationship was entered could apply its workers compensation law to claims arising from accident in another state).

402. Pacific Employers Insurance Co., 306 U.S. at 493.

403. Watson v. Employers Liab. Assurance Corp., 348 U.S. 66 (1954)(holding that neither due process nor full faith and credit clauses prevented Louisiana from permitting direct action against tortfeasor's insurer despite no-action clause in contract between tortfeasor and its insurer that was valid under law of state of contracting because Louisiana had a legitimate interest in safeguarding persons injured in state); Clay v. Sun Ins. Office, 377 U.S. 179 (1964)(holding that neither due process nor full faith and credit clauses prevented Florida from applying its law to disregard contractual limitation that was valid under law of place of contracting in claim brought under insurance policy by insured who moved to Florida after obtaining policy for losses suffered in Florida).

404. 449 U.S. 302 (1981)(holding that Minnesota could apply its law allowing stacking of uninsured motorist coverage to an accident that occurred in Wisconsin when 1) decedent was member of Minnesota's work force and commuted there regularly, 2) defendant was present and doing business sin Minnesota, and 3) plaintiff moved to Minnesota after accident but prior to commencing litigation).

405. 449 U.S. at 313.

406. Cf. International Shoe Co. v. Washington, 326 U.S. 310, ___ (1945)("But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such tat the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." [Citation omitted.]").

Subsequent decisions returned to this general, descriptive language, took it out of context, and erected it into a requirement of first of "minimum contacts," e.g., Hanson v. Denckla, 357 U.S. 235 (1958), and then a two-part test of "minimum contacts" plus fairness, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). The erection of this passage from International Shoe into a formulaic test and the apotheosis of minimum contacts is ironic given the fact that the language was originally part of a criticism of the reification of presence and doing-business under prior cases.

But the Court that announced the Hague standard deliberately formulated it akin to the language of minimum contacts--"significant" requiring something more than the "minimum--and students are right to suspect that future cases may return to this general language and look for clauses as sources of subrules.

407. Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-20 (1981). The four-vote plurality decision was sufficient to support the holding affirming because Justice Stewart did not participate. In addition, Justice Stevens voted to affirm, but did so without adopting the test endorsed by both the plurality or dissenting opinions.

408. 449 U.S. 332 (Powell, Burger, Rehnquist, JJ. dissenting). See also Scoles & Hay, supra note ___, § 3.23 at 84-86 (criticizing reasoning of plurality opinion in Hague). In favor of the plurality's reasoning should be noted that everyone would agree that Minnesota law could apply, had the decedent been a resident. In fact, however, the decedent as a member of Minnesota's work force commuting daily to the state, arguably had more real presence in the state and contributed more to the local economy, establishing a basis for the assertion of Minnesota state interests in protection and compensation, than had many legal residents with attenuated ties to the state.

409. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, ___ (1985)("Given Kansas' lack of "interest" in claims unrelated to that State, and the substantive conflict with jurisdictions such as Texas, we conclude that application of Kansas law to every claim in this case is sufficiently arbitrary and unfair as to exceed constitutional limits."). The Court's emphasis on the small percentage of plaintiffs and mineral leases in Kansas suggests that the evaluation of contacts requires a comparison of respective contacts in other states.

410. The cases illustrate how state courts applying modern choice-of-law theories may find themselves selecting the law of a state with which the litigation has no significant contact. In Shutts, the Supreme Court of Kansas concluded that the different state interest rates presented a "false conflict" (i.e., that other states had no real interest in having their interest rate govern the case), 472 U.S. at ___. Under the theory of interest analysis and other modern theories, forum law should apply in a case of false conflict. In Hague, the Minnesota District Court found likewise characterized the case as presenting a false conflict and applied forum law, but the Minnesota Supreme Court concluded that forum law represented the "better rule of law." 449 U.S. at ___.

Because the constitutional standard requires that the forum have an interest in applying its law, none of these cases should presumably have been characterized as false conflicts. Rather, at most, they present the "unprovided for case"--so called because Currie's theory of governmental interest analysis did not provide an adequate theoretical solution to formal conflicts in which, upon analysis, it is discovered that neither state has an interest in applying its law. Currie himself suggested that forum law should always apply in default, including in cases where there is a true conflict between the laws of two foreign states but the forum has no interest. Cf. Brainerd Currie, Comments on Babcock v. Jackson, 63 Colum. L. Rev. 1233, 1242-43 (1963).

It is now clear that Currie's proposal of applying forum law in default in certain cases where the forum has no significant contact creating a state interest is unconstitutional. It is also clear that the mere pendency of proceedings in the forum gives the forum court an insufficient interest in applying its conflicts rules. But the Supreme Court cases suggest strongly that there will not be a constitutional unprovided-for case where no state's law may apply because no state has an interest. It seems that the state where the cause of action accrued will always have a significant contact creating a state interest so that its law may apply.

411. Sun Oil Co. v. Wortman, 486 U.S. 717 (1988), held under facts essentially identical to those in Phillips Petroleum, that even thought Kansas was constitutionally prevented from applying its substantive interest rates to the claims, it was not prevented from applying its own statute of limitations: "This Court has long and repeatedly held that the Constitution does not bar application of the forum State's statute of limitations to claims that in their substance are and must be governed by the law of a different State. . . .We conclude that our prior holdings are sound." 486 U.S. at 722.

412. 486 U.S. at 726, citing 2 James Kent, Commentaries on American Law 462-63 (2d ed. 1832).

413. 486 U.S. at 730 ("At the time the Fourteenth Amendment was adopted, this Court had not only explicitly approved (under the Full Faith and Credit Claus) forum-state application of its own statute of limitations, but the practice had gone essentially unchallenged. And it has gone essentially unchallenged since.").

Justice Scalia's opinion reveals a significant bias (perhaps unintended) towards the forum court's characterization. For example, he did not consider the fact that legislation in Mississippi as old as the due process cases provides that its statutes of limitations are substantive. See infra note ___.

414. 486 U.S. at 730.

415. Sun Oil Co. v. Wortman, 486 U.S. 717, 737 (1988)(Brennan, Marshall, and Blackmun, JJ. concurring). Justice Brennan's analysis distinguished between cases where a forum barred foreign claims applying its shorter statute of limitations and cases where a forum continued to hear a case under a longer forum statute that was barred by the foreign limitations period. He argued that the forum's interest in avoiding stale claims easily supported the conclusion that it had a sufficient contact to support its own, shorter limitations period. 486 U.S. at 737. Where the forum's limitations period is longer, he found the analysis more complicated, but found nevertheless that the lack of clear indications of a conflict with foreign state interests in repose together with the longstanding judicial practice of applying forum law supported the holding that the forum was free to apply its longer statute of limitations. 486 U.S. at 738-39.

416. See Scoles & Hay, supra note ___, § 3.23 at 5 (1995 supp.)("Taken to its natural stopping point, [Justice Scalia's opinion in Sun Oil Co. v. Wortman] leads to the conclusion that all traditional choice of law rules are constitutional. Whether Wortman will be so extended--or limited to the statute of limitations context--remains to be seen.")

417. Justices Brennan, Marshall, and Blackmun expressly rejected the rule that any longstanding choice-of-law rule was constitutional. 486 U.S. at 740. Justice O'Connor (joined by Chief Justice Rehnquist) did not expressly disagree with Justice Scalia's rule of historical validation. But she pointed out that "Different issues might have arisen if Texas, Oklahoma, or Louisiana regarded its own shorter statute of limitations as substantive." 486 U.S. at 743. It is not clear whether this difference would be important because it might indicate a stronger policy in the foreign state in application of its limitations or whether such a characterization might have fallen into the exception under which certain statutes of limitations were deemed substantive (under longstanding practice). This problem was not addressed but would be confronted by a foreign court faced with the claims that have expired under some Mississippi statute of limitations, because Mississippi by statute makes the expiration of limitations "substantive" by providing that it extinguishes the right as well as the remedy. Justice Scalia thought that cases enforcing promises to repay debts barred by the statute of limitations provided authority for characterizing limitations as procedural, 486 U.S. at 725, but Mississippi's statute permits enforcement of promises to repay but nevertheless provides that the underlying debt is extinguished. See Miss. Code Ann. § 15-1-3, quoted supra note ___.

418. Statutes of limitations were easier to decide, for there was precedent on the issue. E.g., Wells v. Simonds Abrasive Co., 345 U.S. 514, 516-18 (1953); Townsend v. Jemison, 50 U.S. (9 How.) 407, 413-20 (1850), M'Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 327-28 (1839), cited by Sun Oil Co., 486 U.S. at 722. In other cases, however, the Court refused to uphold application of forum law despite the possible characterization of the issue in conflict as one of procedure. See Home Ins. Co. v. Dick, 281 U.S. 397 (1930)(holding that Texas could not apply its statutory policy against contracts for shorter limitations, looking at effect of decision on parties in rejecting characterization of issue as procedural); John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178 (1934)(holding that Georgia state court could not leave issue to jury notwithstanding possible characterization of issue of division of labor between judge and jury as matter of procedure). Neither the majority nor the concurring opinions in Sun Oil Co. v. Wortman discussed Yates.

Writing a few years prior to Justice Scalia's opinion, Weintraub insisted, "A court ought not to be able to escape the mandate of full faith and credit through the device of classifying the rule that it wishes to apply as 'procedural.'" Weintraub, supra note ___, § 9.3D (discussing several Supreme Court cases and explaining why Wells does not require a different result).

419. Cf. John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178 (1934). See supra note ___.

420. Mississippi may constitutionally apply its comparative negligence statute to actions stemming from torts that occur in Mississippi. Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939). But it will be harder to show that Mississippi has a state interest in applying its comparative negligence statute to torts that occur out-of-state and that involve residents of other states.

421. Miss. Code Ann. § 15-1-65; see supra note ___ and accompanying text.

422. Vick v. Cochran, 316 So. 2d 242, 246 (Miss. 1975)(holding Alabama law governed claim by Alabama passenger against Alabama employer of Alabama truck driver's for driver's negligence in causing accident in Mississippi). The actual facts of this case suggest strongly that its holding should be construed more narrowly than its somewhat broad dictum. See supra note ___, discussing case.

423. U.S. Const. amend XIV § 1 ("No State shall. . .deny to any person within its jurisdiction the equal protection of the laws."); Miss. Const. art. III, § 24, quoted supra note ___.

424. Yick Wo v. Hopkins, 118 U.S. 356 (1886)(holding that equal protection applies to citizens, aliens, and corporations).

425. Pembina Mining Co. v. Pennsylvania, 125 U.S. 181 (1888)(equal protection applies to corporations).

426. Classifications based on residence do not implicate fundamental rights, so their constitutionality is measured under the less searching rationally-related test. See generally Scoles & Hay, supra note ___, § 3.34 at 107-08.

427. See, e.g., Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361 (1933)(permitting substituted service without notice upon nonresident corporations), overruled (on due process grounds), Mullane v. Central Hanover Bank & Trut Co., 339 U.S. 306 (1950); [s/l case?]

428. Cf. Power Mfg. Co. v. Saunders, 274 U.S. 490 (1927).

429. Cf. Skahill v. Capital Airlines, Inc., 234 F. Supp. 906, 908 (D.N.Y. 1964)(holding New York choice-of-law rule that disregarded cap on damages for residents only did not violate rights of nonresident under equal protection or privileges and immunities clauses); accord Moan v. Coombs, 47 N.J. 348, 221 A.2d 10 (1966)(holding that refusal to extend certain benefits to nonresidents whose state did not reciprocate did not violate equal protection clause); Holly v. Maryland Auto. Ins. Fund, 29 Md. App. 498, 349 A.2d 670 (1975)(holding that refusal to extend certain benefits to nonresidents whose state did not reciprocate did not violate equal protection or privileges and immunities clause); Law v. Maercklein, 292 N.W.2d 86 (N.D. 1980)(holding that denial of recovery from state fund to nonresident did not violate privileges and immunities clause).

430. Proponents of modern choice-of-law rules recognized the potential for equal protection and privileges and immunities problems. See generally Brainerd Currie & Herma H. Schreter, Unconstitutional Discrimination in the Conflict of Laws: Equal Protection, 28 U. Chi. L. Rev. 1 (1960); Brainerd Currie & Herma H. Schreter, Unconstitutional Discrimination in the Conflict of Laws: Privileges and Immunities, 69 Yale L.J. 1323 (1960); Larry Kramer, Interests and Policy Classes in Conflict of Laws, 13 Rutgers L. Rev. 523 (1959). Currie suggested that territorial rules that denied a resident a recovery based solely on the place of the wrong might itself violate the equal protection clause. Currie, supra note ___, at 577.

431. See generally Scoles & Hay, supra note ___, § 3.34 at 108 (assuming even procedural distinctions are unconstitutional); Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249 (1992); Douglas Laycock, Equality and the Citizens of Sister States, 15 Fla. St. U.L. Rev. 431 (1987); Peter D. Isakoff, Note, Unconstitutional Discrimination in Choice of Law, 77 Colum. L. Rev. 272 (1977).

432. Richman & Reynolds, supra note ___, § 96[c] at 286 ("An equal protection challenge to a choice of law is likely to fail, therefore, unless strict scrutiny is applied.")

433. Weintraub, supra note ___, § 9.4 at 571-72.

434. 470 U.S. 869 (1984).

435. 470 U.S. at 883. To avoid the adverse treatment, an insurance company had to both incorporate in Alabama and maintain its chief place of business in the state. 470 U.S. at 872 n.2. And foreign companies could lower the additional tax imposed on them (but not eliminate it) by investing in certain Alabama securities. 470 U.S. at 872.

436. See generally 3 Ronald Rotunda & John E. Nowak, Treatise on Constitutional Law Substance and Procedure § 18.3 at 22-41 (1992)(discussing recent treatment of rational relationship test).

437. 470 U.S. at 876.

438. 470 U.S. at 869.

439. Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 882 (1984)(We hold that. . .promotion of domestic business by discriminating against nonresident competitors is not a legitimate state purpose [emphasis added]."); id. ("We do not agree that this [second] is a legitimate state purpose when furthered by discrimination [emphasis added].").

The dissenting justices protested that the Court's misapplied the rationally related test, confusing the validity of state interests with the issue of whether the discriminatory classification advanced those state purposes. For the dissent, the economic purposes advanced by the Alabama statute were obviously legitimate. 470 U.S. at 883 (O'Connor, Marshall, and Rehnquist, JJ., dissenting).

440. Because the foreign insurers had waived the issue of rational relationship in order to appeal to the Alabama Supreme Court, the only issue presented to the Supreme Court was the legitimacy of the asserted state interests. 470 U.S. at 873-74, 875.

441. This argument is advanced in Scoles & Hay, supra note ___, § 3.33 at 106. Nevertheless, the argument itself assumes that it is valid to discriminate against forum shoppers on the basis of residence, which itself must be explained as advancing some legitimate state interest. The Supreme Court has permitted nonresidence to be taken into account in granting forum non conveniens dismissals. Cf., e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, ___ (1981)(holding that trial court properly dismissed action on grounds of forum non conveniens in part because plaintiff's choice of forum was entitled to little weight when plaintiff was nonresident, but not considering whether such distinction violated equal protection clause).

442. The argument that a plaintiff is not constitutionally injured when the case is decided under the law of the plaintiff's residence sounds plausible. But it is a questionable basis for an exception to the requirement that the forum state treat persons equally--especially where the plaintiff's foreign national law is repugnant to local notions of basic fairness. It is questionable whether special deference to law of sister states would be permitted. Even under the privileges and immunities clause, the Court rejected the argument that New Hampshire's tax on Maine residents who worked in New Hampshire was not unconstitutional because (after their home state tax credit was taken into account) they were not subjected to higher taxes than would otherwise be imposed by the law of their state of residence. Austin v. New Hampshire, 420 U.S. 656, 660 n.4, 665-66 (1975). The Court acknowledged the value of reciprocity but suggested it did not justify the "unilateral imposition of a disadvantage upon nonresidents." 420 U.S. 667 n.12.

443. See supra note ___.

444. U.S. Const. art. IV § 2 cl. 1. There are actually two clauses. See also U.S. Const. amend. XIV § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . ."

445. Blake v. McClung, 172 U.S. 239 (1898); Paul v. Virginia, 75 U.S. (8 Wall.) 168, 178-81 (1868), overruled in part on other grounds, United States v. S.-E. Underwriters Ass'n, 322 U.S. 533 (1944). The exclusion of corporations is an artifact of antiquated constitutional jurisprudence that recognized the power of states to exclude corporations altogether.

446. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371 (1978)(holding that higher fee for nonresident hunting and fishing license did not violate privileges and immunities because clause only protected those rights that bore on vitality of nation as a whole). But see Hicklin v. Orbeck, 437 U.S. 518 (1978)(holding that state higher preference for residents violated privileges and immunities of citizens of other states). Cf. Barnard v. Thorstenn, 489 U.S. 546 (1989), Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988)(holding residency requirements for admission to state bar violated privileges and immunities clause).

447. Canadian N. Ry. v. Eggen, 252 U.S. 553 (1920)(holding discrimination against nonresidents was not matter of great importance so as to raise privileges and immunities issue as long as nonresident had reasonable time to bring the suit). Statutes of limitations tolling claims against absent defendants for residents but nonresidents did not violate privileges and immunities. Chemung Canal Bank v. Lowery, 93 U.S. (3 Otto.) 72 (1876). A more recent decision reaches a similar result on equal protection grounds. Cf. G.D. Searle & Co. v. Cohn, 455 U.S. 404 (1982)(holding statute tolling limitations for claims against foreign corporation without in-state agent did not violate equal protection or due process clause because increased difficulty of service provided rational basis for tolling). But cf. Haughton v. Haughton, 76 Ill. 2d 439, 394 N.E.2d 385 (1979)(tolling statute applying only against nonresident held to violate equal protection). See generally Weintraub, supra note ___, § 3.2C at 59 n.54 (opining that statute or repose exception in favor of forum residents does not violate equal protection clause but citing Eggen as only federal authority).

448. E.g., id.; Richman & Reynolds, supra note ___, § 96[b] at 286 ("It is unlikely. . .that the Privileges and Immunities Clause will be held to limit significantly state decisions in choice of law.");

449. 420 U.S. 656 (1975).

450. 420 U.S. at 665.

451. The Court found that the tax was "not offset even approximately by other taxes imposed upon residents alone." 420 U.S. at 666.

452. See 420 U.S. 660-61.

453. 420 U.S. at 662.

454. 420 U.S. at 662.

455. See supra notes ___, ___, ___.

456. One wonders whether the logic behind the Court's concern with legislative protectionism should not extend to the elected judiciary, cf. Miss. Const. art. 6 § 145 (providing for election of supreme court justices). If so, the judicial adoption of choice-of-law rules that adversely affect nonresidents may also be vulnerable to privileges and immunities challenge.

457. For choice-of-law rules in claims against the United States government, see supra part V(B).

458. "[A] state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." Foreign Sovereign Immunities Act, 28 U.S.C. § 1604.

459. Id. § 1605(a)(5)--but excluding claims based on discretionary functions and certain intentional torts. Id. § 1605(a)(5)(A)&(B) (1997 supp.)

460. Id. § 1605(a)(7)("personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources. . .for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. . ."). The court must decline to hear the claim if the state is not designated a sponsor of terrorism or if the claimant has not followed applicable international arbitration rules.

461. Id. § 1605(a)(2). Commercial activity is interpreted narrowly. See Saudi Arabia v. Nelson, 507 U.S. 349 (1993)(construing commercial activity restrictively and barring claim for torts against American employee).

462. Id. § 1605(a)(3)&(4).

463. Id. § 1605(c).

464. Id. § 1606.

465. Id.

466. Id.

467. Federal courts have original but not exclusive jurisdiction over such cases, 28 U.S.C. § 1330(a), and they are removable, 28 U.S.C. § 1441(d).

468. Compare Barkanic v. General Admin. of Civil Aviation of The People's Republic of China, 923 F.2d 957 (2d Cir. 1991)(statute requires application of forum state's choice-of-law rules) and Harris v. Polskie Linie Lotnicze, 641 F. Supp. 94 (N.D. Cal. 1986)(statute requires application of choice-of-law law of Poland, in death action where death occurred in Poland), aff'd, 820 F.2d 1000 (9th Cir. 1987). Cf. Pittston Co. v. Allianz Ins. Co., 795 F. Supp. 678 (D.N.J. 1992)(marine insurance claim in admiralty governed by admiralty choice-of-law rules). But cf. Cimino v. Raymark Industries, Inc. 739 F. Supp. 328 (E.D. Tex. 1990)(statute contains no implicit choice of law rule).

469. U.S. Const. amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced and prosecuted against one of the United States by Citizens of another State, or Citizens or subjects of any Foreign State."). This does not prevent certain orders enjoining state officials, see generally Wright, supra note ___, § 48 at 306-12. Nor does it prevent counties and municipalities from being deemed "citizens" of their state for purposes of federal diversity of citizenship jurisdiction. Moor v. Alameda County, 411 U.S. 693, 717-18 (1973), overruled in part on other grounds by, Monell v. Dept. of Social Services, 436 U.S. 658 (1978); Reeves v. City of Jackson, 532 F.2d 491 (5th Cir. 1976); Pyramid Corp. V. Desota County Bd. of Supervisors, 366 F. Supp. 1299 (N.D. 1973).

470. State of Nevada v. Hall, 440 U.S. 410, 427 (1979)(affirming California state court judgment in tort action against state of Nevada). Justice Stevens considered and rejected challenges to California's jurisdiction based on sovereign immunity, full faith and credit, the eleventh amendment, and implied constitutional limits. See generally John Rogers, Applying the Internal Law of Sovereign Immunity to the States of the Union, 1981 Duke L.J. 449 (criticizing Justice Stevens's reasoning but approving of the holding).

471. See Streubin v. Illinois, 421 N.W.2d 874 (Iowa 1988)(permitting garnishment of tax revenues owed to Illinois by Illinois corporation in Iowa but only after requiring creditor to first attempt to satisfy judgment in Illinois on grounds of comity).

472. Church v. Massey, No. 94-CA-01144-SCT, Slip op. (Miss. June 26, 1997), 1997 Miss. LEXIS 264 (holding that trial court erred in dismissing Brewer State Junior College, agency of state of Alabama, pursuant to Alabama state Constitution that prohibited joinder of state as defendant when plaintiff was Mississippi resident and accident occurred in Mississippi).

473. Church v. Massey, No. 94-CA-01144-SCT, Slip op. at 6, 1997 Miss. LEXIS 264.

474. Miss. Code Ann. §§ 11-46-1 to 11-46-23. Cf. § 11-46-13 (no trial by jury); § 11-46-15 (limits on damages and exclusion of punitive damages, prejudgment interest, and most attorneys fees). See generally David W. Case, From Pruett to Presley: The Long and Winding Road to Abrogation of Common Law Sovereign Immunity in Mississippi, 63 Miss. L.J. 537-81 (1994)(excellent discussion of history of limited waiver of sovereign immunity in Mississippi).

475. While actions against foreign states may not have been constitutionally forbidden, they were in fact constitutionally unthinkable for most of the State's history, cf. State of Nevada v. Hall, 440 U.S. 410, ___ (1979), Miss. Code Ann. 13-3-57 (even the 1991 revision of the long-arm statute makes not provision for service on foreign states), and the Mississippi Supreme Court did not hold that such actions were permissible until 1997. Church v. Massey, No. 94-CA-01144-SCT, 1997 Miss. LEXIS 264.

476. Recognizing the defense would not only promote comity but deter forum shopping in cases in which Mississippi has no interest.