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Rocking the Bar Exam > Conflict of Law (Essay Only) > Flashcards

Conflict of Law (Essay Only) Flashcards

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1
Q

domicile / individuals

domicile for people - ways to acquire

A
  • can only have one domicile at a time
  • domicile by choice
  • domicile by operation of law
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2
Q

domicile / individuals

how to acquire domicile by choice

A
  1. physical presence in the chosen domicile
  2. have an intent to remain for indefinite time

“your mind + your behind”

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3
Q

domicile / individuals

how to acquire domicile by operation of law

A
  • 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
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4
Q

domicile / corporations

where is the domicile for a corporation

A

ALWAYS state of incorporation

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5
Q

domicile

continuity of domicile - who has burden to show a change in domicile?

A

party asserting the change

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6
Q

choice of law / general + terms

state in which the lawsuit is brought (term)

A

forum state

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7
Q

choice of law / general + terms

law of another jurisdiction (term)

A

foreign

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8
Q

choice of law vs. jurisdiction

A
  • choice of law is about the law to be applied
  • jurisdiction is whether the court can decide a case
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9
Q

choice of law / limits

constitutional limits

A
  1. 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
  2. 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

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10
Q

tip

key phrase for constitutional limitations

A

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

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11
Q

choice of law / contract clause

courts will enforce a contractual choice of law provision IF (give the test)

A
  1. valid agreement with effective choice of law clause
  2. applicable to the lawsuit under terms of contract
  3. reasonably related to the lawsuit AND
  4. not in violation of pbpl of forum state or another interested state

choice of law provisions are generally enforceable

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12
Q

choice of law / approaches

list the approaches

A
  1. traditional approach / vested rights approach / 1st Restatement
  2. governmental interest analysis
  3. most significant relationship / 2nd Restatement
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13
Q

choice of law / approaches

traditional / vested rights approach (R1st)

A

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

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14
Q

choice of law / approaches

governmental interest approach

A

presumed that forum state will apply its own law, but another state may have a greater interest

  1. 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
  2. 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

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15
Q

choice of law / approaches

most significant relationship analysis (R2d)

A

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

  1. promote relevant policies of the forum and other interested states
  2. protect systemic interests like certainty, uniformity, predictability, and simplicity
  3. protect justified expectations of the parties for planned transactions

additional factors for certain areas of law (torts, contracts, etc.)

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16
Q

tip

how to start an answer using the most significant relationship analysis (R2d)

A

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.

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17
Q

choice of law / approaches

dépeçage

A

application of different states’ laws to different issues within the same case

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18
Q

choice of law / approaches

renvoi

A

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
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19
Q

choice of law / approaches / torts

vested rights approach

A

law of the place where the tort occurred
last event necessary to create a tort

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20
Q

choice of law / approaches / torts

government interest analysis approach

A

no changes in how to apply

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21
Q

choice of law / approaches / torts

most significant relationship approach

A

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

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22
Q

choice of law / approaches / contracts

contract validity

A

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

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23
Q

choice of law / approaches / contracts

vested rights / traditional approach

A
  • 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.
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24
Q

choice of law / approaches / contracts

most significant relationship approach

A

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

25
Q

choice of law / approaches / property

default rule for immovable property contracts (land)

A

law of the state of situs (where property is located)

want justified expectation of the parties
whole law of the state

26
Q

choice of law / approaches / property

default rule for tangible personal property

A

law of state where it is physically located UNLESS UCC or governmental interest approach applies

27
Q

choice of law / approaches / property

default rule for intangible personal property

A

law of state in which intangible property was created UNLESS UCC or governmental interest approach applies

28
Q

choice of law / approaches / property

distribution of immovable property at death under R1st and R2d (real property)

A

law of situs

29
Q

choice of law / approaches / property

distribution of moveable property at death under R1st and R2d (personal property)

A

law of decedent’s domicile at time of death

30
Q

choice of law / approaches / property

validity of will

A

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

31
Q

choice of law / approaches / corporations

default rule for internal affairs

A

state of incorporation

32
Q

choice of law / approaches / corporations

default rule for external affairs

A

corporation is treated like natural person so apply the 3 tests

33
Q

choice of law / approaches / family law

marriage validity - traditional vested rights approach

A

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

34
Q

choice of law / approaches / family law

incidents of marriage - traditional vested rights approach

A

deterred by law of place where the incidents of marriage are sought to be exercised

incidents of marriage - rights that come from marital status

35
Q

choice of law / approaches / family law

marriage - most significant relationship approach

A

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

36
Q

choice of law / approaches / family law

marital property

A
  • immovable property - law of situs
  • movable property - law of state where couple was domiciled at time of acquisition
37
Q

choice of law / approaches / family law

divorce

A

controlled by law of plaintiff’s domicile

38
Q

recognition of foreign judgments

traditional approach to foreign law in the pleadings

A

laws of another state or country weren’t considered law at all
considered facts to be proven in court

39
Q

recognition of foreign judgments

modern approach to foreign law in the pleadings

A

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

40
Q

defenses against application of foreign law

penal law exception

A

forum state will NOT enforce another state’s penal laws

41
Q

defenses against application of foreign law

laws against public policy

A

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

42
Q

defenses against application of foreign law

procedural laws

not substantive

A

forum law’s procedures always govern

43
Q

substance vs. procedure distinction

A

substantive laws regulate behavior outside of court
procedural laws regulate inside court

44
Q

recognition of foreign judgments

what laws apply if a federal court is exercising federal question jurisdiction

A

federal law always

45
Q

recognition of foreign judgments

federal court with state judgment

A

federal courts must give full faith and credit to state court judgments

46
Q

recognition of foreign judgments

state court with federal judgment

A

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

47
Q

recognition of foreign judgments / Erie

Erie doctrine (generally)

A

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

48
Q

recognition of foreign judgments / Erie

Erie: how to determine if state statute is substantive

A

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

49
Q

recognition of foreign judgments / Erie

when does procedural law apply

A

applies only in state court, not federal court

50
Q

recognition of foreign judgments / Erie

what is substantive law

A

any state law that defines the legal rights and obligations of the parties

51
Q

recognition of foreign judgments

Klaxon Rule

A

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)

52
Q

recognition of foreign judgments / family law

ex parte divorce

A
  • 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
53
Q

recognition of foreign judgments / family law

bilateral divorce

A

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

54
Q

recognition of foreign judgments / family law

child custody

A

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

55
Q

recognition of foreign judgments

rule for workers’ compensation

A

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

56
Q

recognition of foreign judgments

judgments from foreign countries

A

US courts have discretion to decide whether to recognize foreign country judgments

usually enforced as matter of comity (mutual respect among sovereigns)

57
Q

can a party against whom enforcement of a judgment is sought challenge the original judgment based on SMJ?

Essay 313

A

yes, if SMJ was not litigated in the original action

generally, state courts + federal courts have to honor judgments (Full Faith and Credit)

58
Q

what test do most states use when determining which laws to apply in the determination of the enforceability of a premarital agreement?

Essay 291

A

apply the law of the state with the most significant relationship to the agreement + subsequent marriage

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