choice of law

Question 1

what will the bar exam fact pattern look like

Answer 1

• it will involve a litigation having FACTUAL contacts with more than 1 state

Question 2

what is the question for choice of law

Answer 2

which substantive law governs

Question 3

what are the 3 choice of law approaches

Answer 3

1) first restatement ( vested rights approach)
2) second restatement (the “most significant relationship” approach)
3) interest analysis (governmental interest approach)

Question 4

what is the basic rule for federal district court sitting in diversity

Answer 4

a federal district court sitting in diversity jurisdiction, the court willy apply the choice of law approach of the state in which it SITS (located)

Question 5

if venue and PJ was properly brought but is transfered for non-convients (1404) what choice of law approach will be used

Answer 5

apply the conflicts rules of the TRANSFEROR state (the court where it case originated)
- only if 1404 transfer: venue was proper and PJ

Question 6

what is the x/c to apply a different choice of law approach in a transfer

Answer 6

under 1404, if transfer to another federal district by a FORUM SELECTION PROVISION, agreed upon by parties. Then the choice of law analysis “re-starts”
- it is not locked in at time of filing

Question 7

what if the transfer is based upon 1406 and not 1404

Answer 7

1406: file where venue was not proper,

- choice of law restarts and is not “locked-in” by the original forum

Question 8

Torts: choice of law approach for first restatement (vested rights)

Answer 8

place of INJURY

- apply the law by wherever the injury occurred

Question 9

Torts: second restatement (most significant relationship) approach

Answer 9

• court will apply the law of that state that is MOST SIGNIFICANTLY RELATED to the outcome of the litigation. look looks at BOTH
  1) CONNECTING FACTS and the
  2) POLICIES behind the laws in question

Question 10

Torts: second restatement (most significant relationship) approach: what 2 things do the courts look at for most significant relationship

Answer 10

1) CONNECTING FACTS AND

2) POLICIES BEHIND THE LAWS IN QUESTION

Question 11

Torts: second restatement (most significant relationship) connecting facts analysis

Answer 11

1) place of INJURY
2) place of CONDUCT causing injury
3) place of the HOME state of the parties (domicile/ place of business)
4) place where RELATIONSHIP if any, b/w the parties centered

Question 12

torts: second restatement (most significant relationship) what are the 2 policy principles

Answer 12

1) REGULATE CONDUCT or

2) to ensure ADEQUATE COMPENSATION for the individuals harmed

Question 13

torts: second restatement (most significant relationship) policy principle (regulate conduct)

Answer 13

if the primary policy behind the law in question is to regulate conduct, the key connecting fact is the place of CONDUCT causing the injury occurred

Question 14

torts: second restatement (most significant relationship) policy principle (ensure adequate compensation)

Answer 14

if the primary policy behind the law in question is to ensure adequate compensation, the key connecting fact is the DOMICILE of the plaintiff

Question 15

tors: second restatement (most significant relationship) i there is a tie breaker

Answer 15

presumption/ tiebreaker: PLACE OF INJURY

Question 16

torts: second restatement (most significant relationship) if there is multiple state torts

Answer 16

the tort occurs in more than 1 state (eg; defamatory statements in times) the injury was most probably occurred in PLAINTIFF’S DOMICILE and most courts will regard that as the place of injury

Question 17

torts: governmental interest approach

Answer 17

just like second restatement (most significant relationship) x/c the tie breaker

• tiebreaker: law of the FORUM
• tiebreaker of second restatement: place of injury

Question 18

introductory sentence for choice of law approach

Answer 18

at issue is which state’s law will govern the outcome of this litigation. The answer would depend on which choice of law approach the forum state employs

Question 19

K: first restatement (vested rights) 2 different scenarios

Answer 19

1) contract FORMATION: PLACE OF CONTRACTING (execution, where signed)
2) contract PERFORMANCE: place of PERFORMANCE (or primary performance if in more than 1 state)

Question 20

K; first restatement (vested rights) contract formation

Answer 20

place of contracting (where signed)

Question 21

K: first restatement (vested rights) contract performance

Answer 21

place of performance (primary performance if in more than 1 state)

Question 22

K: second restatement (most significant relationship)

Answer 22

CONNECTING FACTS test

• do not need policy
• if use policy just say the reasonable expectation of parties

Question 23

k: second restatement (most significant relationship) connecting facts

Answer 23

1) place of CONTRACTING (where signed)
2) place of NEGOTIATION
3) place(s) of PERFORMANCE
4) place of HOME STATE of the parties (domicile/ place of business
5) place where SUBJECT MATTER of the K, if any, is located

Question 24

for land K what approach do courts usually use

Answer 24

the property rule instead of K rule

Question 25

GR: for choice of laws provisions

Answer 25

parties’ choice of law provision will govern the K (i.e. even if another state has more connecting facts)

Question 26

2 x/c to gr for choice of laws provision

Answer 26

1) if choice of law provision would allow the parties to DO SOMETHING FORBIDDEN by most interested state (ie: the one with the most connecting facts) and the law selected has NO SUBSTANTIAL RELATIONSHIP with the k/parties
2) choice of law provision violates a FUNDAMENTAL policy of the state with a MATERIAL greater interest than the chosen state

Question 27

1 x/c to GR for choice of laws provision

Answer 27

1) if choice of law provision would allow the parties to DO SOMETHING FORBIDDEN by most interested state (ie: the one with the most connecting facts) and
2) the law selected has NO SUBSTANTIAL RELATIONSHIP with the k/parties

Question 28

2 x/c for GR for choice of laws provision

Answer 28

2) choice of law provision violates a FUNDAMENTAL policy of the state with a MATERIAL greater interest than the chosen state

Question 29

REAL property rule

Answer 29

apply the law of the SITUS (where land located)

- applies both to inter vivos transaction (sale K) and inheritance matters

Question 30

PERSONAL property rule for inter-vivos transactions

Answer 30

SITUS at the TIME of the RELEVANT TRANSACTION

Question 31

PERSONAL property rule for inheritance

Answer 31

apply the law of the decedent’s DOMICILE AT THE TIME OF DEATH
- physical presence and intent to remain indefinitely

Question 32

x/c for gr for personal property if descendant dies with valid will

Answer 32

court will often choose a law that EFFECTUATES TESTATOR’S WISHES

Question 33

GR for marriage choice of law

Answer 33

if a marriage is valid where it is performed (celebrated) it will usually be recognized as valid everywhere

Question 34

x/c to gr for marriage choice of law

Answer 34

a state can refuse to recognize a marriage from another state if it involves their own domiciles and violates a STRONGLY HELD PUBLIC POLICY of the forum

Question 35

are marriages judgments and entitled to full faith and credit

Answer 35

NO

Question 36

premartial K provision

Answer 36

choice of law rules are the same as for other contracts

Question 37

what is the will for forum procedural law

Answer 37

forum will use its OWN choice of law approach to determine which SUBSTANTIVE law to apply
- FORUM ALWAYS USES OWN PROCEDURAL LAW though

Question 38

what choice of law approach will a state apply to determine which substantive law applies

Answer 38

forum will use its OWN choice of law approach to determine which SUBSTANTIVE LAW to apply

Question 39

SOL rule

Answer 39

GR: a state will DISMISS a case that is FILED BEYOND its OWN STATUTE of limitations

Question 40

will a state dismiss a case that is filed beyond its own statute of limitations

Answer 40

yes

Question 41

if a claim is timely filed within a state’s own statute of limitations what are the 2 basic approaches to determine if SOL is substantive or procedural

Answer 41

1) Traditional approach: SOL traditionally treated as PROCEDURAL, thus forum typically would apply its own SOL
2: MODERN APPROACH: SOL treated as SUBSTANTIVE matters, subject to a basic choice of laws approach (ie: apply the statute of limitations MOST SIGNIFICANTLY RELATED to state)

Question 42

traditional approach if a claim is timely filed in state’s own SOL, to determine if procedural or substantive

Answer 42

SOL traditionally PROCEDURAL and forum apply its own SOL

Question 43

MODERN approach if a claim is timely filed in state’s own SOL, to determine if procedural or substantive

Answer 43

treat SOL as SUBSTANTIVE and do choice of law approach (most significantly related state)

Question 44

2 x/c to traditional approach for when SOL is treated as procedural and state would apply its own SOL

Answer 44

1) BORROWING STATUES (statutory direction): forum is directed to borrow the shorter SOL from the state where the c/a arose
2) STATUTE CONDITIONS SUBSTANTIVE RIGHT (special SOL): apply another states SOL if state statutes creates substantive right, you apply the SPECIAL STATUTE including SOL if the statute has a special SOL embedded in it

Question 45

first restatement matters of internal corporate affairs

Answer 45

matters of internal corporate affairs are governed by the law of the state of incorporation.

Question 46

one policy for contracts of second restatement

Answer 46

certainly, predictability, and uniformity of result