Conflict of law

Question 1

Roadmap

Answer 1

1. Domicile (preliminary matter)
2. Recognition and Enforcement of judgments
3. Choice of law

Question 2

Domicile

Answer 2

Three ways domicil appears on exam:

1. Domicile of decedent is use to choose the law to be applied to determine intestate succession of personal property
2. Domicile at death determines which gets estate taxes
3. Domicile of individual give SMJ for a divorce

Question 3

Domicile of choice**

Answer 3

1. Legal capacity is needed to make domicile of choice.
2. Standard: the ability to fend for yourself

Two part test to establish domicile:

1. Physical presence in that state
2. The _intent t_o remain indefinitely

• physical presence may be for a very short time (don’t have to be there for a long time)
• Conflicts btwn acts and word on intent: Action speak louder than words
• A person can have only one domicile; if a person has multiple residences >> primary one considered domicile
• once obtained, a domicile of choice is kept until another one is acquired
• Motive to go to another state to acquire domicile is irrelevant

Question 4

Domicile by operation of law

Answer 4

If a person has no legal capacity to acquire a domicile of choice that person will be assigned one by operation of law.

Key situation: domicile of child or mental incompetent

3 Rules:

1. If a person does not have legal capacity to get a domicile of choice, the child or mental incompetent will have the domicile of that person’s parents
2. 2. If parents are divorced, domicile is that of the parent who has physical custody
3. If a person had a validly acquired domicile
   before becoming mentally incompetent, that person will retain the domicile of
   choice during the period of incompetency.

Question 5

Recognition and Enforcement of judgments

Answer 5

1. The state handing down judgment = rendering state
2. The state called upon to recognize and enforce judgment = recognizing state/forum state

Two situations to consider:

1. judgments rendered by sister state court
2. judgments rendered by foreign country court

Question 6

Sister state judgments

Answer 6

Is the judgment entitled to full faith and credit? Two requirements:

1. Judgment must meet the full faith and credit requirements, and
2. No valid defenses apply

Question 7

Full Faith and Credit requirements

Answer 7

1. Valid J in the rendering ct over both the parties and the subject matter of the litigation

1. “One attack” rule: the validity of J can be attacked only once, either in rendering ct or recognizing ct
2. if J was fully and fairly litigated in the rendering ct, that determination is entitled to full faith and credit be recognizing ct even if if was wrong

2. The judgment must be a final judgment

1. if judgment is modifiable >> not final and gets no FFC, but will usually be enforced under principles of comity
2. modifiable judgments:
   
   1. future alimony
   2. future child support
3. judgment for amounts already accrued and in arrears considered final judgments
4. judgments on appeal are not final judgments unless rendering state would allow enforcement of the judgment pending appeal

3. The judgment must have been rendered on the merits

1. Two situations that are on the merits for FFC purposes:
   
   1. default judgments
   2. consent judgments
2. since parties in these two situation had the opportunity to go to a judgment on the merits they ar so considered here
3. with a default judgment, of all P’s assertions are taken as true

• controlling law on all three FFC requirements: rendering state law

Question 8

Defenses

Answer 8

Most attempted defenses do not work (the so-called “non-defenses”) but you must talk about them if they appear in the facts. Only two defenses are good today:

1. judgment is penal - judgment rendered for an offense against the public (eg. crim sanction/fines, NOT punitive damages)
2. extrinsic fraud (NOT instrinsic)
   
   1. instrinsic - fraud that could have been dealt with during litigation
   2. extrinsic - fraud that could not have been coped w in the earlier trial (bribing judge)
3. non-defenses - wont work but must talk abt them if they appear on facts
   
   1. Judgment based on COA that violated public policy
   2. Mistakes by a judge in the earlier trial - remedy is to appeal incorrect judgment, too late to raise it at the recognition of judments stage
   3. Inconsistent judgments - later judgment can be enforced even though it is inconsistent w a valid earlier one

Question 9

Foreign country judgments

Answer 9

Can be recognized and enforced under principles of fairness, PROVIDED that a two-part comity test is satisfied:

1. J must have been proper (fundamental fairness/minimum contacts) AND
2. Fair procedures must have bee used in foreign country proceeding

• to determine whether foreign judgment meet this test use **recognizing state’s law **(due process - enough contacts w litigation or parties to make J fair)

Question 10

Family law judgments

Answer 10

Recognition and enforcement of family law judgments involves consideration of J both SMJ and PJ. Three types of judgments, each with its own different jurisdictional requirements:

1. the termination of the marital status, that is, the divorce.
2. property awards, such as alimony and child support.
3. child custody awards.

• Judgments may be of all three types (eg, divorce with alimony, child support and
  child custody) so you may have to consider J for each.

Question 11

Divorce

Answer 11

A valid divorce requires proper SMJ and this requires
that one of the two spouses be domiciled in the state rendering the divorce. Three types of divorce:

1. The ex-parte divorce, where **only one **of the spouses is validly domiciled where the divorce is granted.
2. The bi-lateral divorce, where one of the spouses is validly domiciled where the divorce is granted, and both spouse are subject to PJ there.
3. The consent divorce, where both want out of the marriage and go together somewhere to get it (ie, the “quickie” divorce)

• So for any kind of divorce to be valid there must be a valid domicile of at least one of the parties to give the necessary SMJ

Question 12

Procedural matters on divorces

Answer 12

1. _**Burden of proof: _The *attacker bears the BOP and can introduce any relevant E whatever, even if the E came into
   existence *after the divorce was granted.
2. _Any interested person who is not
   estopped can attack_ a divorce decree for lack of SMJ
   
   1. Strangers to the marriage can’t attack it.
3. P is estopped if:
   
   1. attacker was subject to **PJ **in the earlier proceeding (spouse in a bi-lateral divorce)
   2. attacker played a
      meaningful role in the granting of the divorce (even if no PJ)
   3. persons who are in privity w a party to the divorce (children)
   4. spouses who has married in reliance on the earlier divorce

Question 13

Property awards

Answer 13

A court granting alimony or child support must have **PJ **over the spouse whose property rights are in issue.

Question 14

Child custody fee

Answer 14

Valid J for determining child custody lies only in the child’s home state.

Question 15

Divisible divorce doctrine

Answer 15

If a decree has some parts that are good and some that are bad, you keep the good and ignore the rest; this is called the divisible divorce doctrine

Question 16

Federal courts

Answer 16

By statute, fed and state cts are required to recognize one another’s judgments

Question 17

Choice of law: Constitutional limitations

Answer 17

Two Constitutional provisions: due process and full faith and credit; one test to see if each is satisfied:
The state chosen must have a **significant contact **or
contacts with the parties or the subject matter of the litigation which give it a legitimate interest in seeing
its law applied.

• 5 words to remember: _significant contacts_ giving legitimate interest.
• No weighing of the interests of the states
  is needed; as long as a state meets the test then its law can be applied, even though another state might have more interest.

1. Two situations that do not meet the 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.

Question 18

Three separate choices of law approaches

Answer 18

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

• Bar examiners will frame their questions one of two ways:

1. they will tell you in the question which approach the forum state follows, OR
2. they will ask you to discuss each of the three approaches in your answer

Question 19

Vested rights approach

Answer 19

The traditional system; also called the territorial approach; set out in the First Restatement of Conflicts.
Under the vested rights approach, the law to be applied is the law where the rights of the plaintiff vested, and each area of the law had a rule or rules to answer this.

4 Steps to choose the law under vested rights:

1. Determine the **substantive area **of law involved in the problem (eg, torts, contracts, property, family law, etc)
2. Find the **vesting rule **for that area of law
3. Apply the vesting rule to choose the law to apply
4. State the **result **of the law chosen by the rule

Two things to note about the vested rights approach:

1. It had a rule for every area of the law.
2. The rules were all **territorial **rules, pointing to a single place.

Most vested rights rules were fairly clear and easy to apply, BUT they may wind up pointing to a state that has absolutely no policy interest in the outcome of the litigation.

Question 20

Most significant relationship approach

Answer 20

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 to choose the law under most significant relationship:

1. Determine the **substantive area of law **in the problem.
2. Find and discuss the **connecting **facts. (facts will vary depending on the area of law)
3. Note and discuss the **policy **principles - only two principles to find and discuss:
   
   1. the interests of the **forum **and
   2. the interests of the other **states **involved in the problem.
4. Choose the law with the most significant relationship to the outcome, based on your conclusions from #2 and #3.
5. State the **result **of the law chosen on the case.

Question 21

Interest analysis approach

Answer 21

Begin with the assumption that the forum will apply
its own law. If a party requests, the forum will examine its own interest and the interests of any other states involved in the case and will determine which of four categories the conflict fits in:

1. Is it a false conflict (only one state has an interest in having its law applied)? If so, apply the law of the only J with an interest in the outcome of the litigation.
2. Is it a true conflict (two or
   more of the states involved have an interest in the litigation, and one of them is the forum state)? If so, apply the law of the forum state, unless the interest of other state is much greater (tip: always choose forum state law in true conflict situation)
3. Is it **a disinterested forum **case (two or more states have an interest in having their law applied and the forum is not one of them)? court can:
   
   1. apply the law that is closest to forum law, or
   2. apply the better law
4. Is it an unprovided-for case, where **no **state has an interest in applying its own law. court often apply forum law

Question 22

COL: Torts

Answer 22

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

1. Rules Regulating Conduct
For all rules regulating conduct under all three approaches, apply the law of the place of the conduct. (rules of the road)

2. Loss Distribution Rules
All tort rules that are not rules regulating conduct are loss
distribution rules, those that determine which party will bear the loss.

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

1. Vested rights approach: **The instant a COA arises, P’s rights become vested, so the vested rights rule would say to apply the law of the place where the *rights vested, in other words, the place of the *wrong. Note: this is not necessarily the place of the negligence (or other wrongful act), but the place of the injury.
2. **Most Significant Relationship approach: **Use 5 Steps set out earlier. Key Connecting Factors
   
   1. the place of the injury
   2. the place of **conduct **causing the injury
   3. the **residency **of the parties
   4. the place where the relationship, if any, between the parties is centered

Question 23

COL: Contracts

Answer 23

1. Ability of the parties to choose the law in the contract:

1. Parties can always choose the law in the K for matters of K construction. (any law can be chosen for construction matters)
2. Parties can also choose the law to govern matters of K validity provided three things exist:
   
   1. The choice can’t be contrary to a **fundamental policy **of a state with a greater interest than the chosen state.
   2. There must be a substantial relationship to the parties or the transaction.
   3. The choice must be free of duress; that is, not a K of adhesion

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

**Vested Rights approach: **

1. All issues of contract construction are governed by the place of performance.
2. All issues of contract validity are governed by the place of making, also called the place of execution of K.

Most Significant Relationship approach:
Use 5 Steps set out earlier. Key Connecting Facts:

1. Place of negotiation
2. Place of execution
3. Place of performance
4. Place of **home state **of each party
5. Place where the subject matter of the contract (if any) is located.

Question 24

COL: Real property, personal property

Answer 24

Real Property

Just 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.

Personal Property

For every situation but one, use the same **situs **rule as for real property, and for personal property this means the location of the property at the time of the relevant transaction.

BUT, if the issue is the passing of personal property by **intestate **succession, the state chosen is the state of the deceased’s domicile at death.

Question 25

COL: Family law

Answer 25

GR: if a marriage is valid where performed, it is valid everywhere.

1. Exception: if a marriage would violate the strong **public policy **of a state then it may not be recognized even though it was valid where performed.
2. Marriages void where performed are 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 the forum rule.
3. Divorces are governed by the law of P’s domicile

Question 26

Defense to COL

Answer 26

Three defenses can be raised to a proposed choice of law:

1. That the law chosen is *procedural*, not substantive.

1. Procedural: BOP, SOL
2. Exception: Borrowing statute, which will borrow, and apply, the **shorter **statute of the state where a cause of action arose. BUT Embedded (incorporated) SOL, which are a part of the state substantive law giving a cause of action are considered substantive.
3. Substantive:
   
   1. Contributory or comparative negligence
   2. SOF
   3. PER

2. That the law is against the *public policy* of the forum state. Law must be really offensive for this to apply

3. That the law is *penal* law: applies only to offenses against the public; *criminal judgment* or *fine*

Question 27

Use of State law in Fed Cts

Answer 27

A federal court sitting in a diversity case must use the choice of law rules of the state in which it sits.

If a case is transferred by one federal district to another district under the rule allowing such transfer for convenience of the parties, the court to which the case is
transferred must apply the law of the state in which the **transferor **court sits.

Question 28

Notice and proof of foreign law

Answer 28

Courts will take judicial notice of sister-state and federal law, but the law of a foreign country traditionally is a **fact **which must be **pleaded **and proved. If the foreign country law cannot be determined the forum court will apply **forum **law.