choice of law Flashcards
what will the bar exam fact pattern look like
- it will involve a litigation having FACTUAL contacts with more than 1 state
what is the question for choice of law
which substantive law governs
what are the 3 choice of law approaches
1) first restatement ( vested rights approach)
2) second restatement (the “most significant relationship” approach)
3) interest analysis (governmental interest approach)
what is the basic rule for federal district court sitting in diversity
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)
if venue and PJ was properly brought but is transfered for non-convients (1404) what choice of law approach will be used
apply the conflicts rules of the TRANSFEROR state (the court where it case originated)
- only if 1404 transfer: venue was proper and PJ
what is the x/c to apply a different choice of law approach in a transfer
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
what if the transfer is based upon 1406 and not 1404
1406: file where venue was not proper,
- choice of law restarts and is not “locked-in” by the original forum
Torts: choice of law approach for first restatement (vested rights)
place of INJURY
- apply the law by wherever the injury occurred
Torts: second restatement (most significant relationship) approach
- 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
Torts: second restatement (most significant relationship) approach: what 2 things do the courts look at for most significant relationship
1) CONNECTING FACTS AND
2) POLICIES BEHIND THE LAWS IN QUESTION
Torts: second restatement (most significant relationship) connecting facts analysis
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
torts: second restatement (most significant relationship) what are the 2 policy principles
1) REGULATE CONDUCT or
2) to ensure ADEQUATE COMPENSATION for the individuals harmed
torts: second restatement (most significant relationship) policy principle (regulate conduct)
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
torts: second restatement (most significant relationship) policy principle (ensure adequate compensation)
if the primary policy behind the law in question is to ensure adequate compensation, the key connecting fact is the DOMICILE of the plaintiff
tors: second restatement (most significant relationship) i there is a tie breaker
presumption/ tiebreaker: PLACE OF INJURY
torts: second restatement (most significant relationship) if there is multiple state torts
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
torts: governmental interest approach
just like second restatement (most significant relationship) x/c the tie breaker
- tiebreaker: law of the FORUM
- tiebreaker of second restatement: place of injury
introductory sentence for choice of law approach
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
K: first restatement (vested rights) 2 different scenarios
1) contract FORMATION: PLACE OF CONTRACTING (execution, where signed)
2) contract PERFORMANCE: place of PERFORMANCE (or primary performance if in more than 1 state)
K; first restatement (vested rights) contract formation
place of contracting (where signed)
K: first restatement (vested rights) contract performance
place of performance (primary performance if in more than 1 state)
K: second restatement (most significant relationship)
CONNECTING FACTS test
- do not need policy
- if use policy just say the reasonable expectation of parties
k: second restatement (most significant relationship) connecting facts
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
for land K what approach do courts usually use
the property rule instead of K rule
GR: for choice of laws provisions
parties’ choice of law provision will govern the K (i.e. even if another state has more connecting facts)
2 x/c to gr for choice of laws provision
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
1 x/c to GR for choice of laws provision
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
2 x/c for GR for choice of laws provision
2) choice of law provision violates a FUNDAMENTAL policy of the state with a MATERIAL greater interest than the chosen state
REAL property rule
apply the law of the SITUS (where land located)
- applies both to inter vivos transaction (sale K) and inheritance matters
PERSONAL property rule for inter-vivos transactions
SITUS at the TIME of the RELEVANT TRANSACTION
PERSONAL property rule for inheritance
apply the law of the decedent’s DOMICILE AT THE TIME OF DEATH
- physical presence and intent to remain indefinitely
x/c for gr for personal property if descendant dies with valid will
court will often choose a law that EFFECTUATES TESTATOR’S WISHES
GR for marriage choice of law
if a marriage is valid where it is performed (celebrated) it will usually be recognized as valid everywhere
x/c to gr for marriage choice of law
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
are marriages judgments and entitled to full faith and credit
NO
premartial K provision
choice of law rules are the same as for other contracts
what is the will for forum procedural law
forum will use its OWN choice of law approach to determine which SUBSTANTIVE law to apply
- FORUM ALWAYS USES OWN PROCEDURAL LAW though
what choice of law approach will a state apply to determine which substantive law applies
forum will use its OWN choice of law approach to determine which SUBSTANTIVE LAW to apply
SOL rule
GR: a state will DISMISS a case that is FILED BEYOND its OWN STATUTE of limitations
will a state dismiss a case that is filed beyond its own statute of limitations
yes
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
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)
traditional approach if a claim is timely filed in state’s own SOL, to determine if procedural or substantive
SOL traditionally PROCEDURAL and forum apply its own SOL
MODERN approach if a claim is timely filed in state’s own SOL, to determine if procedural or substantive
treat SOL as SUBSTANTIVE and do choice of law approach (most significantly related state)
2 x/c to traditional approach for when SOL is treated as procedural and state would apply its own SOL
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
first restatement matters of internal corporate affairs
matters of internal corporate affairs are governed by the law of the state of incorporation.
one policy for contracts of second restatement
certainly, predictability, and uniformity of result
