conflict of law Flashcards
How many domiciles can a party have, for the purpose of conflict of law analysis?
What are the two ways to acquire domicile?
ONE AND ONLY ONE
Acquired:
1) by CHOICE: must:
- -ABANDON previous domicile
- -establish PHYSICAL PRESENCE in chosen domicile; and
- -have an INTENT TO REMAIN THERE indefinitely
2) by LAW: no capacity to choose:
- -children take domicile of parents
- -corporations: incorporation (but PPB may be relevant)
What is the forum state?
Forum law?
Foreign law?
forum state = state in which lawsuit IS BROUGHT
forum law = that state’s law
foreign law = law of another jx
What’s the difference between jurisdiction and choice of law?
jx comes first! just whether court can hear case over D
choice of law is WHICH LAW TO APPLY
Where do states look to determine which choice of law rules to apply?
What are the three general approaches a court may use to determine which law to apply?
What should you do on an essay if you’re not told which approach to use?
ITS OWN LAW (forum law decides choice of law rules)
APPROACHES:
1) traditional approach (first restatement)
2) governmental interest analysis
3) most significant relationship (second restatement)
BRIEFLY DISCUSS ALL THREE
What is the traditional approach (first restatement) to choice of law problems?
TRADITIONAL APPROACH:
1) WHERE DID THE LEGAL RIGHT VEST?
1a) vest = where did the LAST ACT take place that is NECESSARY to give plaintiff a CAUSE OF ACTION?
2) apply the law of THAT PLACE.
What is the governmental interest analysis to choice of law problems?
GOVERNMENTAL INTEREST APPROACH:
idea: law applies to set of facts if its application would promote UNDERLYING PURPOSES of the law
1) what kind of law is this?
- -CONDUCT-REGULATING: most laws. declares xyz as wrongful
- -LOSS-SHIFTING LAWS: determines LIABILITY (immunity, vicarious liability, etc)
2) which states are INTERESTED?
- -states have interest in applying conduct-regulating laws when conduct occurs WITHIN STATE, or when a state DOMICILIARY IS INJURED (wherever
- -states have an interest in applying loss-shiting laws when doing so would BENEFIT A STATE DOMICILIARY
3) who wins?
- -if only ONE STATE IS INTERESTED = FALSE CONFLICT. apply interested state’s laws
- -if more than one state is interested, TRUE CONFLICT, apply FORUM STATE’S LAWS. DON’T BALANCE.
- -if neither is interested, apply FORUM STATE’S LAWS
What is the most significant relationship (second restatement) analysis for choice of law problems?
What do you do if no state has a more significant relationship?
MOST SIGNIFICANT RELATIONSHIP ANALYSIS (2nd RST)
idea: apply law with most significant relationship to the particular issue in question
SEVEN GUIDING PRINCIPLES in picking state:
1) promoting relevant POLICIES of forum and other INTERESTED states;
2) SYSTEMIC interests of certainty, uniformity, predictability, and simplicity (CUPS); and
3) protecting JUSTIFIED EXPECTATIONS of parties (for planned transactions)
if no state has most significant relationship, APPLY FORUM LAW
What is renvoi?
How does each approach deal with it?
Exceptions?
renvoi means applying the whole law of the chosen state, INCLUDING CHOICE OF LAW RULES
because that could lead to an infinite loop, all three approaches generally REJECT THE RENVOI, meaning they apply their own choice of law rules
EXCEPTION: for issues involving property rights in land, courts generally ACCEPT THE RENVOI and apply that state’s choice of law rules
How does each choice of law approach get applied to a torts case?
TORTS:
traditional approach: last necessary act to create a tort
–apply law of state WHERE INJURY OCCURRED
governmental interest approach: nothing different
- -interested parties
- -conduct-reg laws interested when within state, hurts a resident,
- -v. loss-shifting, interested when benefit resident
most significant relationship: for torts, PRESUME LAW OF PLACE OF INJURY APPLIES
- -but still BALANCE THESE CONTACTS:
1) where INJURY OCCURRED
2) where conduct CAUSING INJURY OCCURRED
3) DOMICILE/residence/place of biz or inc of parties
4) place where RELATIONSHIP between parties is CENTERED
What is the rule of choice of law regarding a choice of law clause in a K?
what do you do if a choice of law provisions doesn’t apply or is void?
CHOICE OF LAW CLAUSE IN A CONTRACT:
generally enforceable
EXCEPT: validity (illegal subject matter, incapacity, etc) cannot be resolved SOLELY by party’s choice of law
–parties can still choose law to be applied to validity if state has SUBSTANTIAL RELATIONSHIP to parties/transaction, or some other REASONABLE BASIS for the choice
choice will be IGNORED IF APPLICATION OF CHOSEN LAW WOULD BE CONTRARY TO FUNDAMENTAL POLICY OF STATE WITH MOST SIGNIFICANT RELATIONSHIP TO ISSUE
if provision doesn’t apply/is void, do THE THREE APPROACHES
How does each choice of law approach get applied to a contracts case without a proper choice of law provision?
CONTRACTS AND CHOICE OF LAW
1) traditional approach: place of contracting, which = PLACE OF ACCEPTANCE GOVERNS
- -BUT: issues related to PERFORMANCE of K are governed by law of PLACE OF PERFORMANCE
2) governmental interest is always the same
- -interested parties
- -conduct-reg laws interested when within state, hurts a resident,
- -v. loss-shifting, interested when benefit resident
3) most significant relationship:
- -PRESUMPTION: if place of NEGOTIATION is same as place of PERFORMANCE, that state’s law applies
- -but still consider these contacts:
1) place of contracting, negotiation, and performance
2) place where subject matter of K is located
3) location of parties’ domiciles etc
How does each choice of law approach apply to issues of property?
depends on immovable (land, interests in land) or movable (everything else)
immovable: under all three approaches, governed by law of place WHERE PROPERTY IS LOCATED (situs)
- -second restatement (significant relationship) test still requires the seven principles, but strong presumption in favor of law of situs
- -CHOICE OF LAW RULES OF SITUS APPLY (rare renvoi exception)
movables: divided into tangible and intangible
- -tangibles: UCC governs and says it’s okay to choose (but if no UCC, both first and second restatements presume that law of place where property was located at time of transaction applies)
- -intangibles: traditional: where was property CREATED?
- -relationship/second restatement: no presumption, just do the factors
How does each choice of law approach apply to issues of property given by a will?
SUCCESSION OF PROPERTY AT DEATH CHOICE
both trad and significant relationship tests operate the same way:
immovable: SITUS LAW
movable: law of decedent’s domicile at time of death
exceptions:
- -choice of law clauses in will/trust are generally fine
- -preference in favor of VALIDITY
How does each choice of law approach apply to issues of corporate law?
CORPORATE LAW CHOICE OF LAW
divided into internal affairs (rights and obligations of participants in venture) and external affairs (transactions with third parties outside corporate venture)
internal affairs: LAW OF STATE OF INCORPORATION
external: corporation is treated as natural person
- -second restatement (relationship) test: place of incorporation and PPB are potentially relevant
How does each choice of law approach apply to issues of family law, specifically:
marriage?
marital property?
MARRIAGE AND CHOICE OF LAW
1) traditional approach: validity of marriage is governed by law of state where marriage was CELEBRATED (had ceremony)
- -exception: if marriage violates a particularly strong PUBLIC POLICY, court MAY refuse to recognize it.
- -for incidents of marriage (rights stemming from marital status), law of place where RIGHTS ARE SOUGHT TO BE EXERCISED applies
2) relationships test: marriage that is valid WHERE CELEBRATED will be valid everywhere
- -UNLESS it violates public policy of state with MOST SIGNIFICANT RELATIONSHIP with parties at time of marriage (basically the same as traditional approach)
MARITAL PROPERTY AND CHOICE OF LAW
- -if IMMOVABLE: law of SITUS
- -if MOVABLE: governed by law of state where COUPLE WAS DOMICILED AT TIME OF ACQUISITION
- -so community property remains community property, even if moved to a non-community property state
