Conflict of Law (Essay Only) Flashcards
tested with other subjects
domicile / individuals
domicile for people - ways to acquire
- can only have one domicile at a time
- domicile by choice
- domicile by operation of law
domicile / individuals
how to acquire domicile by choice
- physical presence in the chosen domicile
- have an intent to remain for indefinite time
“your mind + your behind”
domicile / individuals
how to acquire domicile by operation of law
- people who don’t have legal capacity to choose a domicile
- children - domicile of parents, custodial parent if parents are in different states , emancipated minor can choose
- incompetent - retains parents’ domicile
domicile / corporations
where is the domicile for a corporation
ALWAYS state of incorporation
domicile
continuity of domicile - who has burden to show a change in domicile?
party asserting the change
choice of law / general + terms
state in which the lawsuit is brought (term)
forum state
choice of law / general + terms
law of another jurisdiction (term)
foreign
choice of law vs. jurisdiction
- choice of law is about the law to be applied
- jurisdiction is whether the court can decide a case
choice of law / limits
constitutional limits
- Due Process Clause (14th) - forum state may apply to its own law to a particular case only if it has significant contact or aggregation of contacts so that it’s neither arbitrary nor fundamentally unfair
- Full Faith and Credit - forum state to apply law of another state when forum state has no contacts or interest in the controversy
see tip card with the key phrase to include
tip
key phrase for constitutional limitations
state may apply its own substantive law to an issue
ONLY IF state has a significant contact or aggregation of contacts with the issue
such that application of its own law is neither arbitrary nor fundamentally unfair
choice of law / contract clause
courts will enforce a contractual choice of law provision IF (give the test)
- valid agreement with effective choice of law clause
- applicable to the lawsuit under terms of contract
- reasonably related to the lawsuit AND
- not in violation of pbpl of forum state or another interested state
choice of law provisions are generally enforceable
choice of law / approaches
list the approaches
- traditional approach / vested rights approach / 1st Restatement
- governmental interest analysis
- most significant relationship / 2nd Restatement
choice of law / approaches
traditional / vested rights approach (R1st)
law that controls is the law of the jurisdiction where the parties’ rights were vested
(act or relationship that gave rise to the cause of action occurred or was created)
when the last act that takes place that is necessary to give P a cause of action
court only needs to determine where legal right vested + apply law of that place
choice of law / approaches
governmental interest approach
presumed that forum state will apply its own law, but another state may have a greater interest
-
distinguish b/t conduct regulating and loss shifting laws
state has interest in applying conduct-regulating law when wrongful conduct occurs w/in its territory or domiciliary is injury
state has interest in applying loss-shifting law when it would benefit a state domiciliary -
determine which states are interested
if only one state is truly interested –> false conflict –> apply law of only interested state
if multiple states interested –> true conflict –> forum state reviews its own policies to determine which law should apply, forum state if can’t resolve
if neither is interested –> apply law of forum state
conduct-regulating laws - designed to regulate conduct, label conduct as wrongful
loss-shifting laws - determine who can/can’t be liable
choice of law / approaches
most significant relationship analysis (R2d)
apply law of state with most significant relationship to issue in question
7 guiding principles (key ones below) to determine which state has the most significant relationship
- promote relevant policies of the forum and other interested states
- protect systemic interests like certainty, uniformity, predictability, and simplicity
- protect justified expectations of the parties for planned transactions
additional factors for certain areas of law (torts, contracts, etc.)
tip
how to start an answer using the most significant relationship analysis (R2d)
The court must determine which state has the most significant relationship to the issue in question.
In making this determination, the court should strive to promote the relevant policies of the forum and other interested states; advance systemic interests like certainty, uniformity, predictability, and simplicity; and protect justified expectations of the parties.
choice of law / approaches
dépeçage
application of different states’ laws to different issues within the same case
choice of law / approaches
renvoi
requires a forum court applying another state’s law to apply the whole law of that state, including choice of law rules
generally rejected
EXCEPT
- Federal Tort Claims Act - apply whole law of place where act/omission occurred
- property rights in land - use other state’s choice of law rules
choice of law / approaches / torts
vested rights approach
law of the place where the tort occurred
last event necessary to create a tort
choice of law / approaches / torts
government interest analysis approach
no changes in how to apply
choice of law / approaches / torts
most significant relationship approach
additional contacts
- place where injury occurred
- place where conduct causing the injury took place
- domicile, residence, place of business of parties
- place where relationship is centered
presumed that law of place of injury will be applied
choice of law / approaches / contracts
contract validity
parties can choose the law that applies to contract validity (different from contract interpretation) IF
* chosen state has substantial relationship to parties or transaction OR
* there is some reasonable basis for the choice
choice will be ignored if application would be contrary to a fundamental policy of the state
choice of law / approaches / contracts
vested rights / traditional approach
- place of execution will govern contract formation, interpretation, and validity
- place of performance (last act necessary to create the contractual right - generally acceptance) will govern time and manner of performance, person obligated to perform, sufficiency of performance, etc.
choice of law / approaches / contracts
most significant relationship approach
presumption: if location of negotiation and performance are same, then apply those laws
additional policy factors
* place of contracting, negotiation, and performance
* place where subject matter of contract is located
* location of parties’ domicile, residences, places of incorporation, places of business
choice of law / approaches / property
default rule for immovable property contracts (land)
law of the state of situs (where property is located)
want justified expectation of the parties
whole law of the state
choice of law / approaches / property
default rule for tangible personal property
law of state where it is physically located UNLESS UCC or governmental interest approach applies
choice of law / approaches / property
default rule for intangible personal property
law of state in which intangible property was created UNLESS UCC or governmental interest approach applies
choice of law / approaches / property
distribution of immovable property at death under R1st and R2d (real property)
law of situs
choice of law / approaches / property
distribution of moveable property at death under R1st and R2d (personal property)
law of decedent’s domicile at time of death
choice of law / approaches / property
validity of will
under UPC, validity is determined under law of place where
* will was executed OR
* testator is domiciled, has a place of abode, or is national at time of death
choice of law / approaches / corporations
default rule for internal affairs
state of incorporation
choice of law / approaches / corporations
default rule for external affairs
corporation is treated like natural person so apply the 3 tests
choice of law / approaches / family law
marriage validity - traditional vested rights approach
validity is governed by law of place where marriage took place
EXCEPT if marriage violates a particularly strong pbpl of domicile of either party, then court may refuse to recognize the marriage
choice of law / approaches / family law
incidents of marriage - traditional vested rights approach
deterred by law of place where the incidents of marriage are sought to be exercised
incidents of marriage - rights that come from marital status
choice of law / approaches / family law
marriage - most significant relationship approach
marriage is valid where it took place and all other states UNLESS it violates pbpl of state with most significant relationship with parties at time of marriage
choice of law / approaches / family law
marital property
- immovable property - law of situs
- movable property - law of state where couple was domiciled at time of acquisition
choice of law / approaches / family law
divorce
controlled by law of plaintiff’s domicile
recognition of foreign judgments
traditional approach to foreign law in the pleadings
laws of another state or country weren’t considered law at all
considered facts to be proven in court
recognition of foreign judgments
modern approach to foreign law in the pleadings
most states allow courts to take judicial notice of laws of other states
federal courts must take judicial notice of laws of all states in US, but require pleading and proof of foreign country’s law
defenses against application of foreign law
penal law exception
forum state will NOT enforce another state’s penal laws
defenses against application of foreign law
laws against public policy
if foreign law violates pbpl of forum state, forum may refuse to apply that law
R1st and R2d - if that law violates a fundamental and strongly held public policy of the forum state
case would be dismissed without prejudice
defenses against application of foreign law
procedural laws
not substantive
forum law’s procedures always govern
substance vs. procedure distinction
substantive laws regulate behavior outside of court
procedural laws regulate inside court
recognition of foreign judgments
what laws apply if a federal court is exercising federal question jurisdiction
federal law always
recognition of foreign judgments
federal court with state judgment
federal courts must give full faith and credit to state court judgments
recognition of foreign judgments
state court with federal judgment
if federal court had diversity jurisdiction over an action issues a judgment, then state court must give that judgment the same res judicata effect that judgment would have been given by courts of state where federal court was located
recognition of foreign judgments / Erie
Erie doctrine (generally)
federal courts exercising diversity jurisdiction must apply the substantive law of the states in which they sit as the law has been interpreted by the highest state court
recognition of foreign judgments / Erie
Erie: how to determine if state statute is substantive
it is substantive if it is outcome determinative in a direct and certain enough way that it encourages forum shopping between state and federal court
recognition of foreign judgments / Erie
when does procedural law apply
applies only in state court, not federal court
recognition of foreign judgments / Erie
what is substantive law
any state law that defines the legal rights and obligations of the parties
recognition of foreign judgments
Klaxon Rule
federal district court in diversity case must apply choice of law rules of the state in which it sits
(still need to follow Due Process + Full Faith and Credit)
recognition of foreign judgments / family law
ex parte divorce
- court has PJ over only one party
- party seeking ex party divorce must establish domicile in the forum state (most states have a residency requirement)
- entitled to Full Faith and Credit for divorce agreement (but not other marital agreements like property rights, alimony, child custody) even though there was no PJ over absent spouse
recognition of foreign judgments / family law
bilateral divorce
if court has PJ over both spouses + one spouse is domicile in the state, then divorce judgment will be valid + entitled to Full Faith and Credit
recognition of foreign judgments / family law
child custody
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
court can make initial custody decisions if it is in child’s home state and all other states must give Full Faith and Credit to such decisions
recognition of foreign judgments
rule for workers’ compensation
if employee gets award in State A, they can get a supplemental award in State B
UNLESS
law of State A bars additional recovery using unmistakable language
recognition of foreign judgments
judgments from foreign countries
US courts have discretion to decide whether to recognize foreign country judgments
usually enforced as matter of comity (mutual respect among sovereigns)
can a party against whom enforcement of a judgment is sought challenge the original judgment based on SMJ?
Essay 313
yes, if SMJ was not litigated in the original action
generally, state courts + federal courts have to honor judgments (Full Faith and Credit)
what test do most states use when determining which laws to apply in the determination of the enforceability of a premarital agreement?
Essay 291
apply the law of the state with the most significant relationship to the agreement + subsequent marriage
