Choice of Law Rules for Specific Areas of Substantive Law

Question 1

What are the specific rules for Tort Cases

Answer 1

First Restatement Vesting Rule — The governing law is the law where the injury occurred.

Second Restatement Considerations
Factual Connections

• Place of Injury
• Place of the conduct causing injury
• Place where the parties are at home
• Place where the relationship, if any, is centered

Policy Principles

• The relevant policies of the forum state AND
• The relevant policies of other connected states.

Usual Outcomes: For all three approaches, the governing law will almost always be the law of the place of injury.

Question 2

What is the main rule for contract law cases with choice of law provisions?

Answer 2

A choice of law provision (clause in K to select law to apply to K) will be enforced if it is valid and express.

• If the choice of law provision is enforced, the provision displaces the choice of law analysis that the court would otherwise perform.
• Conversely, if the choice of law provision is rejected, the court should then conduct a choice of law analysis.
• If in doubt on the bar exam, find the provision invalid.

Question 3

What are the main choice of law rules for contract cases in general?

Answer 3

First Restatement Vesting Rules

• Case is About Formation — Apply the law of the place of contracting.
• Case is About Performance — Apply the law of the place of performance

Second Restatement Considerations
Factual Considerations

• The place of contracting
• The place of negotiation
• The place of performance
• The place where the parties are at home

Policy Principals

• The relevant policies of the forum state
• The relevant policies of other connected states
• The reasonable expectations of the parties.

Question 4

What are the main choice of law rules for property cases?

Answer 4

Property is one area where all approaches essentially continue to apply the same rules.

Immovable (Real) Property — Apply the law of the situs (where property is located)

Movable (Personal) Property

• Case Involves Inter Vivos Transaction — Apply the law of the situs at the time of transaction
• Case Involves Matter Relating to Inheritance — Apply the law of the decedent’s domicile at the date of death.

Question 5

What are the main choice of law rules for family law cases?

Answer 5

Marriage Valid Where Performed Is Recognized: If a marriage is valid where performed, it will be recognized as valid everywhere

• Exception—Temporary Relocation for Marriage: When domiciliaries of one state temporarily relocate to another state to enter into a marriage that violates a prohibitory rule in their home state, the state of domicile will not recognize the marriage.

Forum Applies Own Laws for Divorce: The forum will apply its own divorce laws.

Child’s Status (Legitimacy Rules)

• Legitimacy of a child is governed by the law of the mother’s domicile at the time of the child’s birth.
• The validity of subsequent acts of legitimation concerning paternity are governed by the law of the father’s domicile.

Prohibitory rules are rules that express a strong public policy regarding marriage, such as rules against incest, polygamy, and marriage under a minimum age.

By contrast, directory rules are administrative in nature, such as rules requiring a marriage license, parental consent, and a certificate of a blood test.