Choice of law Flashcards
What conflict of laws rules does a court apply?
The rules of the state in which the court sits.
What are the three conflict of laws tests?
- The First Restatement Approach (vested rights approach)
- The legitimate Interest Approach (is there a legitimate reason for selecting the laws of a state)
- The Second Restatement Approach (is there a significant relationship between the state and the matter)
How does the vested rights approach work?
The Court applies a vesting rule, which is determined by the substantive area of law the matter concerns.
What is the vesting rule for torts under the First Restatement?
Place of injury.
What is the vesting rule for torts under the Second Restatement?
Fact
- Place of injury
- Place of conduct causing the injury
- Place where the parties are at home
- Place where the relationship, if any, is centered
Policy
- Relevant policies of the forum state
- Relevant policies of the other connected states
In torts, the relevant law is usually decided by the place of injury across all three tests. What are the two exceptions to this generalization?
- The rule at issue is a loss distribution rule.
2. The parties in the case share a common domicile.
What is the vesting rule for contracts under the First Restatement?
- If the case is about formation, apply the laws of the place of execution.
- If the case is about performance, apply the law of the place of performance.
What is the vesting rule for Property under the First and Second Restatements?
- Immovable property = apply the law of the situs
- Movable property in an inter vivos transaction = apply the law of the situs at the time of the transaction
- Movable property devised through inheritance = apply the law of the decedent’s domicile at the date of death
What is the vesting rule for Family Law under the First and Second Restatements?
Marriage: A marriage valid where formed is valid everywhere unless the spouses temporarily relocated to a jurisdiction to avoid a prohibitory rule on their type of marriage in their jurisdiction.
Divorce: the forum will apply its own divorce laws
Legitimacy: Legitimacy of a child is governed by the laws of the mother’s residence at the child’s birth. Subsequent acts of legitimation are determined by the law of the father’s domicile.
Under the legitimate interest analysis what are the two types of potential conflicts that could arise?
False conflicts and true conflicts.
What is a false conflict?
The laws contradict one another but only one state clearly has a legitimate interest. In this case, under the legitimate interest test, that state’s law is applied.
What is a true conflict?
A true conflict is a conflict in which the laws conflict and both states have an interest in the outcome.
What two things are considered when determining whether or not a forum has a significant relationship to the case?
- Connecting facts; and
2. Policy principals.
When are choice of law provisions in a contract enforceable?
When they are (i) valid and (ii) express.
They are invalid when (i) the law selected has no reasonable relationship to the contract and (ii) the provision was included without true mutual consent.
What are the two defenses to choice of law:
- Public policy: a forum court will not apply a law that is against its own fundamental public policy.
- Procedural rules: forum courts always apply their own procedural rules (Erie).
