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Law Bar Exam > Conflict of law > Flashcards

Conflict of law Flashcards

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1
Q

“most-significant-relationship” approach

TRADITIONAL

Second Restatement

(2 of 3)

A
  1. Promotion of relevant policies of forum and any interested state
  2. Certainty, Uniformity, Predictability, Simplicity
  3. Protecting justified expectations of parties (planned transaction like contracts)
  • ESPECIALLY FOR FAMILY LAW
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2
Q

“vested-rights” approach

First Restatement

(1 of 3)

A

territorial approach

jurisdiction where parties’s rights are vested (where act that gives rise to cause of action occurred)

generally, where last liable event took place.

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3
Q

“governmental-interest” approach

3 of 3

A

presume forum will apply own law, unless:

  • -false conflict: forum has no interest in litigation = then applies law of state that does have interest in case.
  • -true conflict: forum and another state have interest = then review state policy and if cannot resolve then apply forum.
  • -unprovided for: apply forum.

States have interest when applying
A. Conduct relating laws (regulate conduct) in state or affects domiciliary.
B. loss-shifting laws (immunize) when benefits domiciliary

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4
Q

Depecage

A

application of diff states laws to different issues within a case

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5
Q

renvio

A

when applies law of other state, applies WHOLE law of other state, including state choice of law. Hence, only applied for PROPERTY.

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6
Q

Immovable property governed by __

A

law of the situs of property

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7
Q

tangible movable property governed by __

A

law of state in which property was located at time of transaction

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8
Q

movable property at at death governed by __

A

law of decedents domicile at death

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9
Q

validity of marriage determined by __

A

law of place where marriage was celebrated

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10
Q

states may recognized incidents of marriage if marriage __

A

even if marriage not recognized in that state

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11
Q

Marital interests in moveable property are generally governed by __

A

law of the state where the couple was domiciled at the time the property was acquired.

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12
Q

corporate affairs governed by __

A

vested-rights approach: state of incorporation governs

  • corporation structure
  • shareholder rights
  • internal corporate affairs

most-significant-relationship
-same result; state of incorporation governs

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13
Q

(gray areas) that are substantive, not procedural

A
  1. parole evidence
  2. confidentiality privileges
  3. damages cap
  4. statute of limitations
    • -under First: generally procedural, unless inextricably bound with a statutory right
    • -under Second: forum state generally applies its own statute of limitations.
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14
Q

Constitution application

A

Under Constitution, state may apply its own law to an issue, only if has “SIGNIFICANT CONTACT or AGGREGATION OF CONTACTS with the issue, such that a choice of its law is NEITHER arbitrary or fundamentally unfair.”

“and those contacts exist here because ….”

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15
Q

Under the Erie doctrine, a federal court exercising diversity jurisdiction must apply

A

substantive law in state in which it sits

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16
Q

Under Erie, service of process is considered

A

procedural law

17
Q

Klaxon rule

A

In a diversity action, a federal district court must generally apply the choice-of-law rules of the state in which it sits.

18
Q

Under Erie doctrine

A

To determine whether a given law is substantive or procedural, the court considers whether the failure to apply state law would lead to different outcomes in federal and state court.

19
Q

Torts: vested-rights

A

place where wrong was committed.

20
Q

Torts: most-significant-relationship

A
  1. the Place of the injury
  2. Place for conduct causing injury occurred
  3. Domicile
  4. Play swear relationship is centered

or just argue facts showing most-significant-relationship

21
Q

Contracts: express choice of law of parties

A

choice will govern unless:

  • contrary to public policy
  • no reasonable basis for parties’ choice; or
  • fraud/mistake
22
Q

Contracts: vested-rights

A 
Law where K EXECUTED will apply to: 
[formation & execution related]
-validity of K
-defenses to formation; and
-interpretation of K
Law where K was to be PERFORMED:
[performance related]
-detail of performance (time, manner)
-Obligation of Performance; and 
-Sufficiency of performance
-Excuses of non-performance
23
Q

Contract: most-significant-relationship

A

[common sense]

  • location of contracting, negotiation, performance
  • place where K’s subject matter is located; and
  • location of parties’s domiciles
24
Q

Contract: default

A

land K - state where land is located

personalty - where is place of delivery

25
Q

UCC: Secured transaction

A

place of debtor

26
Q

non-UCC

A

state where property located at time of transaction

27
Q

Real property: Vested-rights

A

[same]

law of situs of real property

28
Q

Real property: most-significant-relationship

A

[same]

law of situs of real property

29
Q

Inheritance of personal property

A

law of deceased domicile at time of death

30
Q

Inheritance of REAL property

A

law of situs

31
Q

Family: generally

A

valid where they took place and recognized in other state

32
Q

Family: divorce

A

plaintiff’s domicile

33
Q

Family: premarital agreement

A

most states: state with most significant relationship

some states: where premarital agreement was executed

34
Q

Procedural in nature

A
  • venue
  • rules of discovery
  • service of process
35
Q

Erie Doctrine

A

Procedural –> federal

Substantive –> state law

36
Q

Substantive in nature

A

-state choice of law

37
Q

Family: defenses

A

bilateral divorce: court that has personal jurisdiction over both and at lease one spouse domiciled in state

ex parte divorce: PJ over BOTH spouses NOT necessary to dissolve marriage.

child custody: UCCJEA reciprocal in all 50. Court makes initial custody if in child’s home state, others respect.

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