Choice of Law Flashcards
1
Q
Basics Re When Choice of Law Q’s Arise
A
- lawsuit involves factual connections w/ multiple states AND
- multiple states will have different laws leading to different results
2
Q
Core Q + Answer Re Choice of Law
A
- core q = which state’s law will govern?
- core answer = governing law is the law selected by the forum court according to its choice of law approach (assuming no applicable constitutional or statutory restrictions)
3
Q
Exceptions to Core Answer Re Choice of Law
A
- occurs when case in fed ct based on div jur
- fed ct sitting in diversity applies choice of law approach of state in which it sits
- transferred div cases have own rule:
-> when filed in proper venue, + case transferred w/in fed system, fed ct applies choice of law approach of og (transferor) ct
-> when venue improper (or filed in defiance of forum selection clause), law of transferee ct applies
4
Q
Possible Kinds of Restrictions on Choice of Law
A
- constitutional
- statutory
5
Q
Restrictions on Choice of Law - Constitutional
A
- Constitution imposes limit only if state’s law is chosen that has no significant contact w/ and/or legit interest in the litigation
6
Q
Restrictions on Choice of Law - Statutory
A
- if forum state has a statute that directs choice of law, then forum ct should apply that statute instead of usual choice of law approach
- common ex = a borrowing statute -> requires ct to apply statute of limitation of another state regardless of choice of law approach that the state uses
7
Q
Main Analytical Approaches Re Choice of Law
A
- the vested rights approach of the First Restatement
- the most significant relationship approach of the Second Restatement
- the interest analysis (governmental interest) approach
8
Q
Vested Rights Approach - Overview
A
- aka First Restatement
3 analytical steps:
- characterizing the area of substantive law
- determining the particular choice of law rule
- localizing the rule to be applied
- forum will generally apply its own law in characterizing an issue, even if the state where the issue arose would apply a different characterization
9
Q
Most Significant Relationship Approach of the Second Restatement
A
- seeks to identify state having the most significant relationship wrt the issue at hand + then apply that state’s law on that issue
- consider the connecting facts in a given case + whether the policy-oriented principles
10
Q
Interest Analysis Approach
A
- start from the assumption that forum will apply own law
-> THEN consider whether forum has any interest in the litigation -> if not, it’s a “false conflict” situation + forum will apply law of the second state - q arises when both forum + second state have interests (“true conflict” situation)
11
Q
Basic Structure of a Choice of Law Answer
A
- Paragraph 1: state the issues + identify choice of law approach
- Paragraph 2: describe the choice of law approach
- Paragraph 3: apply choice of law approach
-> consider facts presented, apply approach, + provide a conclusion
-> should include BOTH the governing law and the result
12
Q
Ex of Paragraph 1 for Choice of Law Q
A
- “The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the (fill in applicable choice of law approach).”
13
Q
Vested Rights - Stock Language for Paragraph 2
A
- “Under this approach, the court will apply the law of that state mandated by the applicable vesting rule.”
- “That rule is selected according to the relevant substantive area of law.”
14
Q
Vested Rights - Structure of Paragraph 3
A
- 1st sentence: categorize the substantive area of law
- 2nd sentence: state the applicable vesting rule
- 3rd sentence: apply vesting rule to determine governing law
- 4th sentence: apply the governing law to determine the result
15
Q
Interest Analysis - Stock Language for Paragraph 2
A
- “Under this approach, the court will consider which states have a legitimate interest in the outcome of the litigation.”
- “The forum court will apply its own law as long as it has a legitimate interest”
- “If the forum state has no legitimate interest, it will apply the law of another interested state”
