Choice of Law

Question 1

Two Constitutional Provisions for Choice of Law

(Test)

Answer 1

Due process and full faith and credit clauses.

• Test: Significant contact giving legitimate interest.

Two situations that do not meet this test:

1. If, after the event in question, someone moves to a new state and that move creates the only contact with that state, then it would be unconstitutional to apply that state’s law.
2. If the only contact with the parties or the litigation is that the suit is brought in a state then it would be unconstitutional to apply that state’s law.

Note: No weighing interests of the states are needed.

Question 2

Three Choice of Law Approaches to Know for the Exam

Answer 2

1. The vested rights approach (First Restatement)
2. The most signficant relationship approach (Second Restatement)
3. The governmental interest analysis approach.

Question 3

The Vested Right Approach

Answer 3

Four Steps:

1. Determine the substantive area of law involved in the problem;
2. Find the vesting rules for that area of law;
3. Apply the vesting rule to choose the law to apply; and
4. State the result of the law chosen by the rule.

Question 4

Most Signficant Relationship Approach

Answer 4

Rule: Under the most significant relationship approach, the law to be applied is the law of the state with the most significant relationship to the outcome of the litigation.

5 Steps:

1. Determing the substantive area of law in the problem.
2. Find and discuss the connecting facts.
3. Note and discuss the policy principles (only two principles: interest in the forum and the other state).
4. Choose the law with the most significant relationship with the outcome.
5. State the result based on the facts.

Question 5

Interest Analysis Approach

Answer 5

Rule: Begin with the assumption that the forum will apply its own law. But, if a party request a party, the forum will examine its own interest involved in the case and will determine which of four categories the conflicts fits in:

1. Is it a false conflict, that is, where only one state has an interest in having its law applied?
2. Is it a true conflict, that is, where two or more states have an interest in the litigation, and one of them is the forum state? (Presume that you will apply the interest of the forum sate unless the other state’s interest is much greater).
3. Is it a disinterested forum case, where two or more states have an interest in having their law applied but the forum state is not one of them. (Courts can either: (i) Apply the law that is closest to forum law; or (ii) Apply the better law).
4. Is it an unprovided-for case where no state has interest in applying its own law? (Apply forum law)

Question 6

Tort Law

Answer 6

Two Step Appraoch:

Step One: Does the legal issue in question involve a cost distribution rule or a rule regulating conduct?

• Rules Regulating Conduct: For rules regulating conduct under all three approaches, apply the law of the place of conduct.
• Loss Distribution Rule: All tort rules that are not rules regulating conduct are loss distrubtion rules, those that determine which party will bear the loss.

Step Two: If the rule is a distribution rule the choice of law is made by applying the appropriate approach:

1. Vested Rights:
   * Apply the law of the place where the rights vested, in other words, the place of the injury.
2. Most Signficant Relationship - Key connecting facts:

• Place of the injury;
• Place of the conduct causing the injury;
• The residence of the parties; and
• The place of the relationship, if any, between the parites is centered.

3. Nothing to add to governmental interest approach.

Question 7

Contract Law

Answer 7

1. Any law can be chosen for construction matters.
2. Parties can also choose the law to govern matters of contract validity provided three things exist:

• The coice can’t be contrary to a fundamental policy of a state with a greater interest than the chosen state;
• There must be a substantial relationship to the parties or the transaction;
• The contract cannot be a contract of adhesion.

3. Choice of law if parties don’t choose the law in the contract:

• Vested Rights:
  
  • All issues of contract construction are governed by the place of performance.
  • All issues of contract validity are governed by the place of making, also called the place of execution.
• Most Significant Relationship:
  
  • Place of negotiation;
  • Place of execution;
  • Place of performance;
  • Place of the home state of each party;
  • Place of the subject matter of the contract is located.

Question 8

Real Property

Answer 8

Rule: One rule for all three approaches: the law of the situs of the property governs, that is, the law of the place where the property is located.

Question 9

Personal Property

Answer 9

Rule: Use the same situs rule as for real property. For personal property this means the location of the property at the time of the relevant transaction.

EXCEPT: If the issues is the passing of personal property by intestate succession, the state chosen is the state of the deceased’s domicile at death.

Question 10

Family Law

Answer 10

Rules:

1. If marriage is valid where performed it is valid everywhere.
2. If a marriage is void where performed it is void everywhere, but if a marriage is void because it failed to comply with some technical requirement of the state where performed it can still be recognized if it would have complied with forum rule.

Exception: If the marriage would violate the strong public policy of a state then it may not be recognized even though it is valid where it was performed.