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Texas Bar Exam Feb. 2024 > Conflict of Law > Flashcards

Conflict of Law Flashcards

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1
Q

Domicile - Types

A
  • domicile of residence
  • domicile of origin
  • domicile of choice
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2
Q

Domicile of Residence

A

if one home, where home located.

if more than one home, center of domestic, social, and civil life.
- amount of time spent in that place
- things the person does there
- the person’s mental attitude toward that place

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3
Q

Domicile of Origin

A

if child’s parents share domicile when child born, domicile of parents

If do not share domicile, domicile of custodial parent

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4
Q

Domicile of Choice

A

When child emancipated or reaches age of majority, has legal right to choose another domicile
- physical presence in the new state
- intent to make the new state the child’s home (remain indefinitely)

Domicile of choice not ordinarily acquired when physical presence stems from physical coercion (like with military servicemembers or prisoners)

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5
Q

Domicile - Minor and Incompetent Persons

A

Lack legal capacity to have domicile of choice. Domicile = domicile of parents or guardians

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6
Q

Domicile - Governing Law

A

Apply domicile rules of forum state.

EXCEPTION - many states require person to be domiciled in state for set period of time before seeking divorce. If asked to enforce divorce judgment from another state, apply the statutory domicile requirements of other state when deciding whether to enforce.

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7
Q

Choice of Law Approaches - Types

A
  • traditional vested-rights approach
  • contemporary interest-analysis approach
  • contemporary most-significant- relationship approach
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8
Q

Choice of Law Approaches - Traditional Vested-Rights Approach

A

apply law of place where particular event occurred.

  1. Characterize substantive issue
  2. Apply particular COL rule that governs that substantive issue

**Most states have abandoned this approach

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9
Q

Choice of Law Approaches - Contemporary Interest-Analysis Approach

A

Assess whether each jdxn has gov’t interest in having law applied to particular dispute. Three categories:

  • TRUE CONFLICT: if more than one state has interest, apply forum’s law as tiebreaker.
    • Comparative impairment: a few states will try to determine how severely each state’s policy interests would be impaired if that state law was not applied to case and then apply law of state whose interests most greatly impaired
  • FALSE CONFLICT: only one state has interest in applying law. Apply law of state that has interest, even if not forum.
  • UNPROVIDED-FOR CASES: if neither state with connection to dispute has interest, apply forum state’s law as tiebreaker
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10
Q

Choice of Law Approaches - Contemporary Most-Significant-Relationship Approach

A

Apply law of place with most significant relationship to parties and events giving rise to lawsuit.

  1. Consider factors related to contacts with states:
    • place where injury / tortious conduct occurred or where contract entered into, negotiated, or performed
    • domicile, residence, nationality, place of incorporation, place of business of each party, and
    • place where relationship, if any, between parties centered
  2. Consider these factors:
    • interstate and international systems’ needs
    • forum’s relevant policies
    • other interested states’ relevant policies and their relative interests in determining particular issue
    • protection of justified expectations
    • basic policies underlying particular field of law
    • certainty, predictability, and uniformity of result, and
    • ease in determining and applying particular law
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11
Q

Choice of Law By Substantive Area: Torts - Vested Rights Approach

A

Vested-Rights Approach: place of the wrong (where last event necessary to make alleged tortfeasor liable took place) UNLESS:
- conduct required by law of state in which conduct occurred cannot form basis for tort liability in another state where injury occurred
- where legal privilege to act exists in state where conduct occurred, privileged action cannot form basis for tort liability in another state

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12
Q

Choice of Law By Substantive Area: Torts - Interest Analysis Approach

A

Interest-Analysis - apply law of state with interest (benefit domiciliaries, tortious conduct occurred there)

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13
Q

Choice of Law By Substantive Area: Torts - Most Significant Relationship Approach

A

Most-Significant-Relationship: consider
- place where injury occurred
- place where conduct causing injury occurred
- domicile, residence, nationality, place of incorporation, and place of business of each party
- place where relationship, if any, between parties centered

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14
Q

Choice of Law By Substantive Area: Torts - Federal Tort Claims Act

A

Federal Tort Claims Act: law of state where act or omission occurred (including COL rules of that state)

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15
Q

Choice of Law By Substantive Area: Contracts - Vested Rights Approach

A

Vested Rights: where contract made (where last act necessary to form binding contract occurred)

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16
Q

Choice of Law By Substantive Area: Contracts - Interest Analysis Approach

A

Interest-Analysis: state that has interest (benefit domiciliary)

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17
Q

Choice of Law By Substantive Area: Contracts - Most Significant Relationship Approach

A

Most Significant Relationship: consider
- place where contract made
- place where contract negotiated
- place of performance
- place of contract’s subject matter
-domicile, residence, nationality, place of incorporation, and place of business of each party

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18
Q

Choice of Law By Substantive Area: Contracts - Choice of Law Clauses

A

COL Clauses enforceable and will apply that law UNLESS:
- chosen state has no substantial relationship to parties / transaction and no reasonable basis for choice
- applying chosen law contrary to fundamental policy of state that has most significant relationship and materially greater interest

*Traditional defenses can make COL clause ineffectual. If no valid COL clause, apply forum’s COL rules to determine which jurisdiction’s contract law to apply.

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19
Q

Choice of Law By Substantive Area: Property Generally

A

Apply property law of place where property located.

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20
Q

Choice of Law By Substantive Area: Tangible Personal Property

A

Tangible personal property: law of situs of property at time interests created (vested rights approach). May also apply law of state with most significant relationship to transaction (which is also generally situs at time of transaction)

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21
Q

Choice of Law By Substantive Area: Intangible Personal Property

A

Intangible personal property: law of state in which transfer occurred. Some states view this as state in which party making transfer is domiciled.

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22
Q

Choice of Law By Substantive Area: UCC-governed Property

A

UCC-governed property: forum state’s version of UCC will determine applicable law (provided that transaction has appropriate relation to forum)

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23
Q

Choice of Law By Substantive Area: Security Interests (property)

A

Security interests: perfection / priority governed by law of jdxn in which debtor located. But if debtor and collateral located in different jdxns, law of jurisdiction where collateral located govrens perfection and priority.

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24
Q

Choice of Law By Substantive Area: Ceremonial Marriage

A

Ceremonial marriage - if met requirements of state where marriage celebrated, valid in other states.
- EXCEPTION: may not be recognized if violates strong public policy of another state that had most significant relationship to spouses and marriage at time of marriage

25
Q

Choice of Law By Substantive Area: Common Law Marriage

A

Common law marriage: law of state in which parties domicile at time of alleged marriage

26
Q

Choice of Law By Substantive Area: Premarital Agreement

A

Premarital agreement: enforceability determined using jdxn’s approach to COL issues

27
Q

Choice of Law By Substantive Area: Divorce

A

Divorce - law of forum where divorce petition filed

28
Q

Choice of Law By Substantive Area: Adoption

A

Adoption - forum applies its own state law

29
Q

Choice of Law By Substantive Area: Wills = Vested Rights Approach

A

Vested rights: validity and interpretation issues governed by decedent’s domicile at time of death

30
Q

Choice of Law By Substantive Area: Wills = Intestate

A

Intestate - personal property, law of state of decedent’s domicile (regardless of where located); real property - law of situs of real property

31
Q

Choice of Law By Substantive Area: Wills = Will Borrowing Statutes

A

Will borrowing statutes - uphold valid

32
Q

Choice of Law By Substantive Area: Corporation

A

internal affairs: usually law of state where incorporated

external interactions with third parties: usual COL approach for that issue

33
Q

Choice of Law: Substantive v. Procedural

A

substantive - perform COL analysis

procedural - apply law of forum

*Forum uses its own law to determine if substantive or procedural

34
Q

Choice of Law - substantive v. procedural - statute of frauds

A

Generally treat as substantive contract issues

35
Q

Choice of Law - substantive v. procedural - Statute of Limitations

A

traditionally procedural.

today. time-barred if barred either by (1) limitations period of forum state or (2) limitations period of state in which action accrues, whichever shorter

36
Q

Choice of Law - substantive v. procedural - statute of repose

A

substantive

37
Q

Choice of Law - substantive v. procedural - burdens of proof

A

procedural

38
Q

Choice of Law - substantive v. procedural - evidentiary privileges

A

procedural.

Evidence admitted unless privileged under laws of state (1) state that has the most significant relationship with communication or (2) the forum state

39
Q

Choice of Law - Defenses (when may not apply another state’s law)

A
  • contrary to forum’s strong public policy
  • involves another jurisdiction’s penal laws (laws enacted by gov’t to punish a person for a public wrong)
  • involves another jurisdiction’s revenue laws (i.e., require payment of tax)
40
Q

Full Faith and Credit Clause

A

Must give full faith and credit to other state’s public acts but does not require application of another state’s statutes.

Can apply its own law if forum has significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair

41
Q

Supremacy Clause

A

whenever state and federal law conflict, federal law prevails

42
Q

Erie Doctrine

A

Federal courts sitting in diversity should apply federal law to resolve procedural issues and state law to resolve substantive issues

43
Q

Diversity cases

A

Federal courts sitting in diversity should apply COL rules that would be applied by state court in state where federal court sits

44
Q

Transfer of venue of diversity cases

A

proper but transfer - transferee will continue to apply COL rules of original court

improper - transferee court will apply COL rules of state in which it suits

if transferred to state designed in forum-selection cause in contract - transferee court will apply COL rules of state in which it sits

45
Q

Judgments of Other States

A

Full faith and credit clause requires each U.S. state to give full faith and credit to final, valid judgments rendered on merits by other states.

BUT if being asked to enforce, can apply its own law regarding methods of enforcement.

46
Q

Valid Judgment - Definition

A
  • rendering court had personal jurisdiction
  • rendering court had SMJ
  • defendant received proper notice
  • defendant was given reasonable opportunity to be heard
  • judgment is in force in rendering state
47
Q

Final Judgment - Definition

A

not subject to any additional proceedings in the rendering court other than execution of the judgment

48
Q

On the Merits - Definition

A

addresses the substance of the claim asserted (summary judgment, dismissal with prejudice, default judgments entered after proper notice given).

Not dismissed without prejudice or improper venue, forum non conveniens, or lack of jurisdiction

49
Q

Federal v. State Judgment

A

State court required to give full faith and credit to federal court judgments and federal courts must accord full faith and credit to judgments from state courts / other federal courts.

50
Q

Foreign country judgments

A

Not entitled to full faith and credit.

Comity - great deal of discretion when deciding whether to recognize and enforce (allowed to do so)

Money judgments - generally given same preclusive effect as if brought in another US state unless no jurisdiction, not impartial, or cause of action contrary to enforcing state’s public policy

51
Q

Defenses Against Enforcing Judgment - Default Judgment: Invalidity

A
  • state that rendered judgment lacked jurisdiction OR
  • defendant did not receive proper notice or was not given reasonable opportunity to be heard
52
Q

Defenses Against Enforcing Judgment - Default Judgment: Fraud or Duress

A
  • defaulting defendant was induced by fraud or duress to submit to jurisdiction or to refrain from contesting action OR
  • plaintiff knew claim was fraudulent
53
Q

Defenses Against Enforcing Judgment - Default Judgment: Mistake

A
  • resulted from defendant’s failure to contest by reason of justifiable mistake OR
  • resulted from substantial mistake by court
54
Q

Defenses Against Enforcing Judgment - Default Judgment: Minor or Incompetency

A
  • entered against defendant who is a minor
  • person adjudicated as incompetent OR
  • person known by party who obtained judgment to be incapable of adequately defending the action
55
Q

Defenses Against Enforcing Judgment - Contested Judgment: Bribery or Coercion

A

Can refuse to enforce if defendant can prove judge or defendant’s attorney was bribed or coerced AND that defendant:

  • acted in due diligence in discovering facts constituting basis for relief
  • asserted claim for relief from judgment with such particularity as to indicate it is well founded and will prove allegations by clear and convincing evidence AND
  • made a reasonable effort in original action to ascertain the truth of the matter
56
Q

Defenses Against Enforcing Judgment - Contested Judgments: Extrinsic Fraud

A

prove same requirements of bribery / coercion:
- acted in due diligence in discovering facts constituting basis for relief
- asserted claim for relief from judgment with such particularity as to indicate it is well founded and will prove allegations by clear and convincing evidence AND
- made a reasonable effort in original action to ascertain the truth of the matter

extrinsic fraud = action by plaintiff or plaintiff’s attorney kept defendant from participating in original action

57
Q

Defenses Against Enforcing Judgment - Contested Judgments: Minor or Incompetent Defendant

A

Unenforceable if:

  • entered against defendant who is a minor, person adjudicated as incompetent, or a person known by the party who obtained the judgment to be incapable of adequately defending action;
  • defendant was not presented by an appointed representative or representative failed to prosecute or defendant action with due diligence and reasonable prudence AND
  • opposing party was on notice of facts making appointed representative’s failure apparent
58
Q

Defenses Against Enforcing Judgment - Inconsistent Judgment

A

if two or more valid judgments inconsistent with one anotherr, later in time is enforced.

Texas Bar Exam Feb. 2024 (16 decks)

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