Conflict of law Flashcards
“most-significant-relationship” approach
TRADITIONAL
Second Restatement
(2 of 3)
- Promotion of relevant policies of forum and any interested state
- Certainty, Uniformity, Predictability, Simplicity
- Protecting justified expectations of parties (planned transaction like contracts)
- ESPECIALLY FOR FAMILY LAW
“vested-rights” approach
First Restatement
(1 of 3)
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.
“governmental-interest” approach
3 of 3
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
Depecage
application of diff states laws to different issues within a case
renvio
when applies law of other state, applies WHOLE law of other state, including state choice of law. Hence, only applied for PROPERTY.
Immovable property governed by __
law of the situs of property
tangible movable property governed by __
law of state in which property was located at time of transaction
movable property at at death governed by __
law of decedents domicile at death
validity of marriage determined by __
law of place where marriage was celebrated
states may recognized incidents of marriage if marriage __
even if marriage not recognized in that state
Marital interests in moveable property are generally governed by __
law of the state where the couple was domiciled at the time the property was acquired.
corporate affairs governed by __
vested-rights approach: state of incorporation governs
- corporation structure
- shareholder rights
- internal corporate affairs
most-significant-relationship
-same result; state of incorporation governs
(gray areas) that are substantive, not procedural
- parole evidence
- confidentiality privileges
- damages cap
- 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.
Constitution application
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 ….”
Under the Erie doctrine, a federal court exercising diversity jurisdiction must apply
substantive law in state in which it sits
Under Erie, service of process is considered
procedural law
Klaxon rule
In a diversity action, a federal district court must generally apply the choice-of-law rules of the state in which it sits.
Under Erie doctrine
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.
Torts: vested-rights
place where wrong was committed.
Torts: most-significant-relationship
- the Place of the injury
- Place for conduct causing injury occurred
- Domicile
- Play swear relationship is centered
or just argue facts showing most-significant-relationship
Contracts: express choice of law of parties
choice will govern unless:
- contrary to public policy
- no reasonable basis for parties’ choice; or
- fraud/mistake
Contracts: vested-rights
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
Contract: most-significant-relationship
[common sense]
- location of contracting, negotiation, performance
- place where K’s subject matter is located; and
- location of parties’s domiciles
Contract: default
land K - state where land is located
personalty - where is place of delivery
UCC: Secured transaction
place of debtor
non-UCC
state where property located at time of transaction
Real property: Vested-rights
[same]
law of situs of real property
Real property: most-significant-relationship
[same]
law of situs of real property
Inheritance of personal property
law of deceased domicile at time of death
Inheritance of REAL property
law of situs
Family: generally
valid where they took place and recognized in other state
Family: divorce
plaintiff’s domicile
Family: premarital agreement
most states: state with most significant relationship
some states: where premarital agreement was executed
Procedural in nature
- venue
- rules of discovery
- service of process
Erie Doctrine
Procedural –> federal
Substantive –> state law
Substantive in nature
-state choice of law
Family: defenses
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.
