Choice of Laws Flashcards
Choice of Laws - Forum Law vs Foreign Law - Process of Deciding Which Should Govern
Process = analyze the case into subsidiary claims and decide which law should apply to each.
Choice of Laws - Foreign Law - Proof of Foreign Law
Content of foreign law must be determined based on evidence. If cannot determine, court may dismiss, assume foreign law is the same as forum law, apply forum law.
Choice of Laws - Foreign Law - Renvoi
Renvoi = once court determines foreign law applies, must decide if if should select the foreign legal rule which would govern the merits in the other jurisdiction (i.e. apply internal law), or if it should act as if it were a court in the other jurisdiction, which means applying the other jurisdiction’s choice of laws rules (i.e. apply whole law, or renvoi).
NB: general rule in every US state is to reject the renvoi, i.e. only apply internal law.
Choice of Laws - Theories - Vested Rights Approach (vs. Interest Analysis vs. Most Significant Relationship)
Theory = the law of the place where a critical event took place, i.e. where the parties’ rights vested should govern.
NB: most states follow the more modern interest analysis approach, particularly the “most significant relationship” test of the Second Restatement.
Choice of Laws - Theories - Interest Analysis Approach
Approach = determine which jurisdictions have an interest in applying their laws to the case by looking to see if the facts create a connection between the dispute and the jurisdiction and bring the dispute within the policies that the jurisdiction’s laws are meant to advance. Then select which law to apply based on comparison of the different interests. If no jurisdiction has an interest, most courts apply forum law.
Choice of Laws - Theories - Most Significant Relationship Approach (Second Restatement)
Second restatement seeks to apply law of jurisdiction with most significant connection to the issue being decided. Different laws may apply to different issues in the same case.
Choice of Laws - Foreign Law - Defenses Against Application
Defenses/exceptions = foreign law contravenes forum’s strong public policy, cause of action would require the forum to enforce another state’s penal laws, cause of action would require enforcing the revenue laws of a foreign nation (unless federal statute or treaty requires).
NB: most states will enforce each other’s revenue/tax laws and judgments.
Choice of Laws - Constitutional Limits
Substantive law = state may apply if it has a significant connection to the case (due process + full faith and credit).
Procedural law = state may apply its procedural law to litigation there, regardless of connection to parties/dispute.
Choice of Laws - Constitutional Limits - Supremacy Clause
Clause = federal law is supreme over state law. If there is a conflict, court must apply federal law.
Choice of Laws - Constitutional Limits - Preemption Doctrine
Doctrine = federal law may expressly or impliedly preempt state law (i.e. federal law occupies the field or state and federal law conflict).
Choice of Laws - Constitutional Limits - Federal Law vs Federal Law
If federal law conflicts, US Constitution is superior, federal statutes and treaties are on equal footing with one another, statutes and treaties are superior to regulations, executive orders and federal common law, and if statute and treaty conflict the most recent is given priority (last-in-time rule).
Choice of Laws - Diversity Cases - Erie Doctrine
Doctrine = in diversity case, federal courts will apply state substantive law and federal procedural law. A federal court may apply the same choice of laws rules as the courts of the state in which the federal court sits.
Choice of Laws - Federal Common Law
Federal courts may make federal common law to address disputes between states and their political subdivisions, admiralty law, and a few other special cases.
