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conflict of laws > conflict of law > Flashcards

conflict of law Flashcards

1
Q

Vested Rights

A

Traditional theory. Court applies the law of place where the cause of action occurred

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2
Q

Effects of Domicile

A
  1. Liable to the jursidiciton of the courts
    2.matters relating to status such as marriage, legitimacy and adoption usually falls on under laws of domicile
  2. transfer of property following death and wills often follow laws of domicile
    4, considered an important contact
  3. likely liable for state taxes.
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3
Q

changing domicile

A

physical presence in state and intent to remain there without a fixed time or purpose until returning to abode

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4
Q

Incapacity and domicile

A
  1. Minors attached to parents
  2. Insane individuals can choose domicile if competent enough
  3. Guardians can change domicile
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5
Q

corporations and domicile

A

Corps are domiciled in place of incorporation

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6
Q

Choice of law, state statute

A

If a state has a statute applying its law in a situation forum court applies this

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7
Q

Choice of law Characterizing the suit

A

State law of forum state. Ie forum court determines if it is a contracts, tort, family case

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8
Q

Choice of Law procedural

A

Court applies forum state procedure

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9
Q

Substantive Vs. Procedural

A

Court determines whether an issue is substantative or procedural based on forum state law

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10
Q

Most significant relationship approach to choice of law

A

Applies the most significant relationship to each issue. Thus a forum court may be exercising law from multiple jurisdictions. Ie its own, and where the occurrence occurred.

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11
Q

depecage

A

The process of applying law from different states. Generally the courts will only apply state law unless a litigant timely invokes the law of a foreign state and states that state law should apply.

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12
Q

Federal Courts in diversity action applying substantive law.

A

Follow the state laws of forum state for determining choice of law.

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13
Q

Factors in determining depecage

A
  1. the needs of the interstate and international systems(Choice of Law rules should further harmony between states and encourage commerce.
  2. relevant policies of forum
  3. the relevant policies of other interested states
  4. protection of justified expectations
  5. the basic policies underlying a particular field of law. ie validating contracts, or tort remedies
  6. predictability and uniform results
  7. ease of determination and application of law
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14
Q

Characterizing law in specific area’s

A

Be reasonable

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15
Q

Choice of Law in tort law

A

Place of injury.
many states follow the choice of law of the state where the occurence occurred, Nevada does too, unless a party presents evidence that another state has more significant relationship with the tort.

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16
Q

Choice of lawWrongful Death

A

Typically the rule is to follow place of injury unless another state has a more significant relationship to the party and the occurrence.

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17
Q

Choice of law Dram shop act

A

Usually applies in state where patron was served even if they caused injury in another state. Nevada has no Dram shop act.

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18
Q

Choice of law Workers compensation

A

Any state that has a legitimate interest in an injury and its consequences

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19
Q

Choice of Law workers comp factors

A
  1. injury occurred
  2. the employment is principally located
  3. Where the employer supervised the employee from
  4. State with most significant relationship to contract
  5. Contract has choice of law provision
  6. state has reasonable relationship to parties and occurrence
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20
Q

Successive awards in Workers comp cases

A
  1. an employee may file a workers comp claim in
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21
Q

Choice of Law Contracts

A

3 catogories

  1. contracts that specify governing law
  2. contracts that specify no choice of law
  3. UCC contracts
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22
Q

Contracts that specify choice of law

A

Generally choice of law clauses control unless,

  1. the chosen state has no substantial relationship to the parties or transaction and there is no other reasonable basis for choice
  2. it is contrary to the policies of the forum state and the forum state would be choice of law absent the choice of law clause
23
Q

Contracts that do not specify choice of law

A

Determined by the place with the most significant relationship. Determined by 5 factors

24
Q

Most significant relationship factors

A
  1. place of contracting
  2. place of negotiation
  3. place of performance.
  4. location of subject matter of contract
  5. the domicile, residence, and nationality place of incorporation, and place of business of the parties
25
Q

Contracts governed by UCC

A

Generally choice of law clause rules, followed by whichever state has an appropriate relation

26
Q

Choice of law Statute of limitations

A

Generally based on forum state if the statute of limitations is so interwoven with the cause of action is basically becomes an element.
ie wrongful death

27
Q

Choice of law property

A

Basically, if it’s about land, or an immovable and not a contract, you apply the law of where it sits (situs)

If it’s an instrument then choice of law of where the insturment sits will likely be applied

If its not an instrument then choice of law of place of transfer may be applied

28
Q

Choice of law Wills and trusts

A

Almost always governed by settlor’s/testator’s domicile.
Except if its a real estate trust, then it is controlled by the state of situs
administration of a Will can be validly performed in either the Domicile at the time of execution, or domicile at the time of death.

29
Q

Choice of law corporations

A

governed by place of domicile/ incorporation

30
Q

Choice of law, validity of marriage

A

Governed by state of ceremony, unless another state has a more significant relation. Ie domicile at time of marriage.
or Marriage violates a strong public policy

Nevada does recognize bigamous and polygamous or incest marriages irregardless of validity in other states

31
Q

Choice of law Annulment

A

Nevada may annul an out of state marriage if

  1. there are grounds for annulment under nevada law
  2. one of the parties has resided in nevada for a period of 6 weeks prior to anullment
32
Q

Divorce decree from sister state

A

If one spouse is domiciled in a state divorce can occur there.

However, if only one spouse is domiciled in the state, and only one spouse participate in the divorce proceedings, the other spouse can attack domicile.

Domicile is assumed until challenged.

Where both spouses participate in a divorce proceeding Jurisdiction must still be based on domicile.

33
Q

Divorce in foreign nation

A
  1. A state need not recognize a foreign divorce proceeding

Most states do if there was a proceeding and both spouses were represented

34
Q

Choice of law evidence

A

considered procedure and choice of law of forum state rules

35
Q

Choice of law burden of proof

A

procedure, choice of law of forum state rules

36
Q

Choice of law presumption

A

rebuttable presumptions procedure, but a conclusive presumption is treated as substantative

37
Q

Choice of Law legal duty

A

substanative

38
Q

Choice of law parole evidence rule

A

substanative

39
Q

measure of damages

A

substantive

40
Q

statute of frauds

A

substanative

41
Q

Borrowing statatut

A

Many states have passed borrowing statutes for statute of limitations claims, where they borrow the statute of limitations for a cause of action arising in another state

Nevada borrowing statute- when a cause of action has a arisen in another state, and the cause of action would be barred by statute of limitations in that state it is barred in Nevada

42
Q

Federal tort claims act

A

Generally a state uses its own choice of law policies but in tort claim in federal court uses the whole law of the state of the occurence causing the claim including choice of law.

43
Q

Choice of law penal law

A

Courts will generally not enforce the penal laws of another state

44
Q

Choice of law, revenue law

A

generally won’t apply the revenue laws of another state

45
Q

Choice of law, public policy

A

States won’t enforce a rule that’s contrary to strong public policy

46
Q

Foreign property

A

generally if property lies outside of a state, courts won’t take the case. If the court has in personem jurisdiction they might.

47
Q

Choice of law, fraud, force and privilege

A

Jurisdiction can’t be created through fraud or unlawful force.
Courts won’t apply jurisdiction when prohibited by international law or treaty

48
Q

Nevada Forum Non conviens factors

A
  1. Location of the defendant
  2. certain public or private interests
  3. the availability of view of the premesis if any
  4. availability of compulsary process for unwilling witness
  5. cost of obtaining testimony from willing witnesses
  6. access to sources of proof
  7. would failure to apply the doctrine subject the defendant to harassment, oppression, vexatiousness, or inconvience
49
Q

Nevada forum non conviens significant considerations

A
  1. enforcability of judgment
  2. judicial administrative dificulties
  3. general pracitcal problems
50
Q

Choice of Law and Due process

A

Supreme court states that in choice of law cases due process needs to be fulfilled by significants contacts, creating state interest, such that choice of law is not arbitrary and fundamentally unfair

51
Q

Choice of law and full faith and credit

A

the full faith and credit clause stops states from discriminating against the laws in other states. Ie. if forum state has a wrongful death statute, they can’t refuse to enforce another states. They do not have to accord special treatment to those states though.

52
Q

Full faith and credit enforcement of remedies

A

A state court must recognize a final judgment on the merits issued by a sister state court unless, it is not a final judgment, is not a judgment on the merits, or the judgment is not valid

53
Q

When federal law preempts state law

A
  1. express preemption- congress may specifically prohibit the states from enacting a particular law
  2. Actual conflict preemeption- erie doctrine

conflict of laws (1 decks)

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