Conflict of Laws Flashcards
Generally
Conflicts is not an MBE subject, so you should not see it in a graded multiple choice question covering conflicts. Some states write their own bar exam questions, and if you’re taking the bar in such a state, you might see a “solely” Conflicts of Law question in this context. Conflicts also may appear on the MEE, and when it does, it is combined with another subject. The two most common subjects it is combined with are Family Law and Federal Civil Procedure. When combined with Family Law, the question frequently deals with the Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”). (See Family Law summary.) When combined with Federal Civil Procedure, the question will often be as a part of or a follow on to an Erie question. Think of an Erie question as a two-round tournament. The first round of the tourna- ment will be whether federal law or state law wins. (Do we apply federal law or state law?) This is also covered in Federal Civil Procedure. If you decide that the issue is substantive and state law wins, you have to go on to round two—which state law wins? Do we apply State A law or State B law? If the case was filed in federal court in State A, you have to use State A’s choice of law rules to determine whether to apply State A law or State B law. (And this makes sense, because a federal court sitting in State A should have a similar outcome as a State A state court.) If the case is filed in a State A state court, obviously you would skip round one—there’s no federal court involved—and use State A’s choice of law rules to determine the applicable law to apply. On the MEE, the question might tell you which approach the State follows, or it might require you to address each of the approaches.
Choice of Law - Methodology
- Traditional “Vested Rights” Approach
Under the “vested rights” approach, the forum applies the law of the place in which the rights of the parties “vest.” This is usually the place where cause of action “arose.”
a. Characterization
The forum court and you must first determine the nature of the case involved— e.g., “torts,” “contracts,” “property.” This characterization is made by the forum in accordance with its own definitions and standards and without reference to any foreign law.
b. Choice-of-law rules
The forum court then applies whichever choice-of-law “rules” govern the problem as characterized (e.g., all “torts” problems are governed by the law of the “place of wrong”). - Modern “Local Law” Approach
Under the “local law” approach, the forum applies its own rules of law but may make reference to “appropriate” foreign rules in certain types of cases.
a. Identify precise issue involved
Rather than attempting to characterize the case as a whole (e.g., a “torts” problem), modern approaches focus on the particular issues to be resolved; i.e., is the issue one of damages, privilege, standard of conduct, etc.? Therefore, you should separate the issues in your question.
b. Various theoretical approaches applied
Then, the court generally will adopt the rule of law—forum or foreign— that bears most significantly on that particular issue. While a number of theories have been advanced, courts tend to make their choice based on one of the three theories below (or some combination thereof). If your question tells you which theory the forum uses, discuss that theory, but if you don’t know which theory is favored by that court, discuss all three.
1) “Most significant relationship” approach
Isolate the nature and number of contacts in each of the states involved, and make reference to the law of the state having the most significant relationship to the particular issue(s) involved (also evaluate policy principles);
2) “Governmental interest analysis” approach
Determine the policies and interests behind the conflicting rules of
each state involved, and apply the law of the place that has an interest in resolving that particular issue (remember though that the forum will apply its own law unless it has no legitimate interest in doing so); or
3) “Better law” approach
Choose between laws, rather than jurisdictions, using various considerations to focus on the rule of law that is most appropriate to the issue at hand.
Choice of Law - How much foreign law should be applied?
- “Substance” vs. “Procedure”
You also need to determine whether the foreign law should be applied to all issues and aspects of the case, or only to those that are “outcome determinative.” Generally, the law of the forum will apply to all procedural matters. - “Renvoi”
Decide if the forum should look to the law that the foreign state would apply to purely internal litigation there, or to the law that it would apply to a problem involving multistate contacts (i.e., the foreign state’s “whole law”).
Choice of Law - Limitations
Consider whether there are any defenses or constitutional limits on the choice of law to be applied.
Judgements - Requirements for Recognition
- Sister-State Judgments
Full faith and credit must be given if the judgment is final and “on the merits,” and if the court rendering judgment had sufficient jurisdiction (above). - Foreign Judgments
For foreign judgments, recognition would be based on doctrines of comity and res judicata, but the requirements are basically the same as for sister-state judgments.
Judgements- Scope of Recognition
Be sure to consider what issues are concluded by the former judgment (doctrine of res judicata) and what persons are bound by it (rules as to parties and privies).
How to Handle a foreign party when you want to use email and don’t know how to reach them to serve the party?
-Not an authorized method of service, but under Rule 4 court may allow
- Service of process on foreign corporation may be made in accordance with international treaty. If no treaty:
~in accordance with foreign country’s laws
~as foreign country directs in response to letter request for guidance
~Clerk mails process to D with signed receipt requested
~Any other non prohibited means or as court may order
Make sure to discuss if the other party has been properly put on notice if an unconventional service of process is used. Needs to be “reasonably calculated to give notice”.
