Choice of Law

Question 1

Can a person have multiple domiciles?

Answer 1

No. Each person ust have only one domicile; the acquisition of a new domicile extinguishes a former domicile.

Question 2

Rule for the domicle of a minor?

Answer 2

A minor’s domicile is the same as the domicile of the minor’s parents. If the parents are separated or divorced, the minor’s domicile is that of the parent with whom the minor lives. (Domicile by Operation of Law)

Question 3

Domicile for “incompetents”?

Answer 3

Persons judged incompetent retain the domicile they had prior to their insanity

Question 4

Domicile is generally determined by what elements?

Answer 4

1) The person’s physical presence in a state, and 2) the person’s intent to remain indefinitely

Question 5

A person asserting a change in domicile must prove:

Answer 5

A change in residence to a new state and an intent to make this new state their permanent residence

Question 6

Factors to prove intent to remain include:

Answer 6

• Owning real estate
• Voting
• Paying taxes to the state or a town
• Having an in-state bank account
• Registering an automobile in the state

Question 7

Must married spouses have the same domicile?

Answer 7

No.

Question 8

The general rule for distinguishing procedural and substantive rules

Answer 8

In general, rules governing rights inside the court are procedural, and rules governing rights and obligations outside the court are substantive

Question 9

The Statute of Limitations is considered? (Procedural or substantive) Exceptions?

Answer 9

Procedural.

Exception: a wrongful-death statute that conditions recovery on a time fixed in the statute = substantive rule

Question 10

Rules of Evidence are considered? (Procedural/Substantive?). Exceptions?

Answer 10

Procedural.

Exception: when an evidentiary ruling would be “outcome determinative” = substantive rule

Question 11

Burdens of Proof are considered? (Procedural/Substantive?). Exceptions?

Answer 11

Procedural. (No listed exceptions)

Question 12

Presumptions are considered? (Procedural/Substantive?). Exceptions?

Answer 12

Rebuttable presumptions are procedural. Conclusive presumptions are substantive.

Question 13

The Parol Evidence Rule is considered? (Procedural/Substantive?). Exceptions?

Answer 13

Substantive. (No listed exceptions)

Question 14

Statue of Frauds is considered? (Procedural/Substantive?). Exceptions?

Answer 14

Substantive. (No listed exceptions)

Question 15

Procedural rules generally include:

Answer 15

• Statute of Limitations
• Rules of Evidence
• Burdens of Proof
• Rebuttable presumptions

Question 16

Substantive rules generally include:

Answer 16

• Statue of Frauds
• Parol Evidence Rule
• Conclusive presumptions

Question 17

Three major choice-of-law approaches include:

Answer 17

1) First Restatement’s “Vested Rights” Approach
2) Second Restatement’s “Most Significant Relationship Approach, and
3) The “Interest Analysis” Approach

Question 18

What is the First Restatement’s “Vested Rights” Approach?

Answer 18

The forum must apply the law of the state where the parties’ rights “vested” (i.e., where the act/relationship giving rise to the cause of action occurred/was created).

Generally, the court applies one of the following:

• Lex loci delecti (Law of place of wrong or injury)
• Lex loci contractus (Law of place of contracting)
• Lex loci situs (Law of the place where the property is located)

Question 19

Steps for the First Restatement’s “Vested Rights” Approach?

Answer 19

Two-step analysis:

First, characterize the cause of action (e.g., torts, contracts, etc.)

Second, apply the appropriate choice-of-law rule

Question 20

Second Restatement’s “Most Significant Relationship Approach”

Answer 20

The forum must apply the law of the state with the “most significant relationship” to the issue being decided.

Question 21

Under the Second Restatement’s “Most Significant Relationship Approach”, a court’s choice-of-law determination is made by considering multiple factors, including:

Answer 21

• Needs of interstate and international systems
• Relevant policies and relative interests of the forum state and of other interested states
• Justified expectations of the parties
• Judicial economy

Question 22

What is the “Interest Analysis” Approach?

Answer 22

The forum should apply the law of the state most legitimately interested in its outcome (focus on the government’s interest)

Question 23

What is the default rule under the “Interest Analysis” Approach?

Answer 23

The forum state applies its substantive law, unless the forum state has no legitimate interest in how a particular issue is resolved

Question 24

What are limitations on and exceptions to Choice-of-Law approaches?

Answer 24

• Due Process
• Public Policy, and
• Penal and Revenue Laws

Question 25

How does due process limit Choice-of-Law approaches?

Answer 25

The choice-of-law determination must be consistent with the norms of fairness embodied in the 14th Amendment’s Due Process Clause.

The law to be applied must be from a state whose connections with the case are not so tenuous as to render its application unpredictable or arbitrary

Question 26

How does public policy limit Choice-of-Law approaches?

Answer 26

Courts will refrain from applying the law of another state when such law offends the strong public policy of the forum state.

Question 27

How do penal and revenue laws limit Choice-of-Law approaches?

Answer 27

A state court will refuse to enforce the penal laws or revenue laws of another state.

Question 28

Traditional (First Restatement) Choice-of-Law approach for torts?

Answer 28

Apply the law of the state where the injury occurred [Lex loci delecti]

Question 29

Modern (Second Restatement) Choice-of-Law approach for torts?

Answer 29

To determine which state has the “most significant relationship” to any particular issue, consider the policies and interests at stake for the following states:

• The states where the parties are domiciled;
• The state where the injury occurred (exception for Dram Shop Acts)

Question 30

Explain how the modern (Second Restatement) approach handles Dram Shop Acts for torts.

Answer 30

Instead of applying the substantive law of the state where the injury occurred, the forum usually applies the law of the state where the tavern is located, except when:

• The tavern in question uses advertising to target residents of another state, and
• The tavern keeper can anticipate that out-of-state residents could return to their home state shortly after consuming beverages at the tavern
  
  • E.g., the bar is located near the border of two states

Question 31

Choice-of-Law for contracts by stipulation?

Answer 31

The parties can agree to apply the law of certain state if it is expressly stated in the contract and:

• The stipulation doesn’t appear as boilerplate language in an adhesion contract,
• The parties picked a state that has a substantial relation to the contract, and
• The law of the parties’ chosen state does not violate the public policy of that state with the most significant relationship to the issue in question

Question 32

Traditional (First Restatement) Choice-of-Law approach for contracts?

Answer 32

Apply the law of the state where the contract was made [Lex loci contractus]

Question 33

Modern (Second Restatement) Choice-of-Law approach for contracts?

Answer 33

Determine the “most significant relationship” by considering the policies and interests of those states where:

• The parties negotiated the contract
• The parties made the contract
• The performance obligations were to be met
• The subject matter of the contract is located
• The parties are domiciled, reside, conduct business, or are incorporated

Question 34

Choice-of-Law rule for contracts governed by the UCC?

Answer 34

If no stipulation by the parties, a state’s UCC can apply to any transaction that bears an appropriate relation to that state

Question 35

Choice-of-Law rule for validity of marriage?

Answer 35

Apply the law of the state where the ceremony took place

Question 36

Choice-of-Law rule for divorce proceeding?

Answer 36

Apply the law of the forum

Question 37

A judgment from the courts of one state must be given full force in the courts of another state if:

Answer 37

it was a final judgment on the merits

• Judgment is NOT final if it could be modified in the rendering state
• Judgment is on the merits if it resolves substantive issues of a dispute

Question 38

A forum court cannot refuse to enforce final judgments on the merits issued by a sister state on the ground that:

Answer 38

• The forum state is interested in the outcome,
• The judgment was wrongly rendered, or
• The judgment is contrary to the strong public policy of the forum state

Question 39

How to courts generally handle judgments of a foreign country?

Answer 39

State courts generally won’t enforce judgments from foreign nations if that proceeding didn’t meet norms of procedural fairness