Conflict of Laws

Question 1

When does a recognition of judgment question arise?

Answer 1

When a judgment has been entered by a court in one jurisdiciton and a party is trying to get a court in another jurisdiction to recognize it.

Question 2

What is the legal term for “the court that entered the judgment that the party is trying to get enforced”

What is the legal term for “the jurisdiction of the court where the party is trying to get the foreign judgment recognized”?

Answer 2

Rendering jurisdiction

Recognizing Jurisdictionm

Question 3

Why will plaintiffs seek recognition of a prior judgment?

Why will defendants seek recognition of a piror judgment?

Answer 3

P will seek recognition to get the court to ENFORCE the judgment

D will seek recogntiion to prevent a plaintiff from relitigating a claim or an issue

Question 4

What is the two part analysis for determining if a recognizing jurisdiction should recognize the judgment from the rendering jurisdiction?

Answer 4

Step 1: Is the rendering jurisdiction a sister state or a foreign country?

Step 2 [if sister state]: a) are the requirements of FF&C met? a) any valid defenses?

Step 2 [if foreign country]: is foreign country entitled to comity?

Question 5

What is the source of the obligation to recognize a judgment from a sister state?

What is the source of the obligation to recognize a federal/state judgment in state/federal court?

Answer 5

The Full Faith and Credit Clause (only between states)

Federal Statute (but operates the same as FF&C clause)

Question 6

What are the 3 requirements for FF&C to apply?

Answer 6

When a judgment is (1) final and (2) on the merits (3) by a court with jurisdiction

Question 7

What is required for a court to have jurisdiction for purposes of satisfying the FF&C requirement?

What’s the key exception/nuance?

Answer 7

Need personal jurisdiction and subject matter jurisdiction

BUT when the jurisdictional issue has been fully and fairly litigated, the determination of jurisdiction itself is entitled to FF&C

Question 8

If PJ was waived in the rendering jurisdiction when D made his defense, can the D later raise it when P tried to take the judgment to the recognizing jurisdiction?

Answer 8

No, the jurisdicitonal issue has been “fully and fairly litigated” because it was waived.

D would have had to not show up and not litigate at all, take the default judgment, and then defent in the recognizing jurisdiction.

Question 9

For a judgment from another state to be entitled to FF&C, the judgment mus tbe “on the merits” what is are examples of judgments that are not on the merits?

What (surprisingly) are 2 instances where a judgment IS on the merits?

Answer 9

Dismissals based on the following are not on the merits

1) SoL had run
2) lack of jurisdiction
3) misjoinder
4) improper venue
5) failure to state a claim (sometimes)

A default judgment treats all factual contentions as admittted and is therefore on the merits for purposes of FF&C (but could not be used for issue preclusion).
A consent judgment (entered after settlement) is also considered on the merits for FF&C purposes

Question 10

What are two judgments that satisfy the “on the merits” prong for purposes of FF&C but would not work for issue preclusion?

Answer 10

Default judgments and consent judgments

Question 11

Is a judgment that is on appeal in the rendering jurisdiction considered to be final?

Is a judgment requiring modifiable alimony payments final?

Answer 11

No

No for future payments (because the rendering court should retain the authority to modify - recognizing state shouldn’t lock in a point in time an duse that going forward). Yes for prior payments already due

Question 12

Which state’s law is used to determine if a judgment is a final judgment on the merits by a court with jurisdiction (and thus entitled to FF&C)?

Answer 12

The rendering state’s law

Question 13

What state’s law governs enforcement?

Answer 13

The enforcing/recognizing state

Question 14

What are the defenses to FF&C?

Answer 14

1) Penal judgments

2) Extrinsic Fraud

Question 15

What is the penal judgment defense to FF&C?

Does the penal judgment defense apply to tax judgments?

Answer 15

Penal judgments are not entitled to FF&C even though the judgment is final, on the merits by a court with jurisdiction.

Penal judgment defense does not apply to tax judgments

Question 16

What is the extrinsic fraud defense to FF&C?

Answer 16

Judgments obtained by extrensic fraud is not entitled to FF&C even if final, on the merits by a court with jurisdiction.

A judgment is obtained by extrensic fraud if the fraud could not be corrected during the regular course of proceedings leading to the judgment (e.g. bribed judge is extrensic fraud but perjury is not intrinsic fraud because could address in the proceeding)

Question 17

What are NOT valid defenses to FF&C?

Answer 17

DON’T FALL FOR THESE! (but maybe still call them out as invalid just to show you know they’re invalid)

• Public policy
• Mistake (ie the judgment is just wrong)

Question 18

When should a court recognize a foreign court’s judgment?

Answer 18

Not required by FF&C, but based on comity and res judicata (but same final, on the merits, and jurisdiction considerations apply)

Question 19

How does a recognizing court determin if it will recognize a judgment from a foreign country’s courts under principals of comity?

Answer 19

Recognizing court will use DISCRETION but a lot of the same FF&C factors apply:

• final judgment?
• on the merits?
• by a court with jurisdiction (can use American notions of due process like notice and opp to be heard here)
• were the procedures in the foreign court fair? (no witnesses, no rules of evidence, corruption)

Question 20

When does a choice of law issue arise?

Answer 20

When the suit has factual connections to multiple states and the laws of the states would reach different results

Question 21

What is the general (mostly unhelpful) rule for what law governs in a choice of law question?

Answer 21

The governing law is the law selected by the forum court according to its choice of law approach

Question 22

When does the forum court NOT apply its own choice of law rules?

Answer 22

1) A FEDERAL COURT sitting in diversity applies the choice of law rules of the state in which it sits
2) VENUE TRANSFER cases within federal courts
3) CONSTITUTION imposes a limit only when the state’s law that would be chosen under the state’s appriach has no significant contact with or legitimate interest in the case (low bar)
4) If the forum state has a STATUTE that directs a choice of law, then the statute displaces the forum’s usual (common law) choice of law approach

Question 23

What choice of law rules apply when venue has been transferred even though the original venue was proper?

What choice of law rules apply when venue was transferred out of an improper venue?

What choice of law rules apply when venue is transferred to enforce a valid forum selection clause?

Answer 23

The choice of law rules of the transferee court apply

The choice of law rules of the transferee court apply

Question 24

What is the structure of a choice of laws answer?

Answer 24

Paragraph 1: State the issue [which state’s law will govern] and identify the choice of law approach (vested rights approach, most significant relationship, Governmental interest)
Paragraph 2: Describe the choice of law approach
Paragraph 3: Apply the choice of law approach to the facts. Conclusion includes which law governs and the result

Question 25

How do you know which choice of law approach (vested rights, governmental interest, significant relationship) will apply?

Answer 25

Will be provided in the question

Question 26

What is the traditional conflicts of law approach? Where was this written? Descibe the approach What are the analytical steps?

Answer 26

The Vested Rights Approach from the 1st Restatement- Apply the law of the place where the rights of the parties "vest" this is usually where the COA "arose" 1) Determine what type of COA is at issue (tort, contract, property,etc) without reference to foreign law 2) State and apply the choice of law rule that governs that type of claim

Question 27

What is the "governmental interest analysis" approach and when is it deployed?

Answer 27

1) Start with the presumption that the state will apply its own law. 2.0) Identify which states have legitimate interests in the litigation 2A) [False Conflict] If one state has no legitimate interest in the litigation, then "false conflict" and the forum applies the law of the interested state 2B) [True Conflict] If both the forum and other state have legitimate interests in the litigation, "true conflict." Identify the policies and interests behind the conflicting rules in each state and apply the law of the place that has an interest in resolving that particular issue - usually the forum state given the presumption

Question 28

What is the analysis of the "most significant relationship" approach? Where was this written?

Answer 28

This is the 2nd Restatement Approach 1) Look at number and nature of CONTACTS in each of the states involved 2) Consider the POLICY reasons motivating each law 3) Choose the law of the state with the most significant RELATIONSHIP of contacts to policy

Question 29

What are the choice of law approaches in the first and second restatements?

Answer 29

The first restatement has the Vested Rights Approach | The second restatement has the Most Significant Relationship approach

Question 30

Which conflict of law approach is not sensitive to the type of COA at play? Which conflict of law approaches are senstive to the type of COA at play?

Answer 30

The Governmental Interest Analysis is not sensitive to the type of COA The Vested Rights Approach (1st Restatement) and the Most Significant Relationship (2nd Restatement) analysis ARE sensitive to the type of COA

Question 31

What is the vesting rule for a TORTS case? What are the 2nd Restatement considerations for a torts case? What is the typical result?

Answer 31

1st Rst Vesting Rule: Governing law is the place where the injury occurred 2nd Rst Factual Connections: Consider the place of injury, place of the conduct that caused the injury, where the parties are from, and where the relationship if any is based 2nd Rst Policy Principles: Relevant policy principals of forum and other states (similar to govt interest analysis) Typical Result: place of injury usually governs

Question 32

For ALL 3 APPROACHES, when is the conflicts of law result NOT the place of injury for a torts case? Which law applies then?

Answer 32

IF ALL OF: 1) The choice of law approach is something other than vested rights 2) a loss distribution rule is at issue (as opposed to conduct regulation) 3) the parties share a common domicile APPLY THE LAW OF THE COMMON DOMICILE for ALL 3 APPROACHEs

Question 33

What are the two types of rules in torts? [The distinction between these two is useful to determining if the law of a state other than the place of injury applies)

Answer 33

Loss Distribution Rule: caps on damages, vicarious liability, rules eliminating liability (immunity) Conduct Regulation Rule: Standard of care, who owes a duty

Question 34

When is a choice of law provision in a contract enforced?

Answer 34

Must be both: 1) VALID (Valid unless (a) chosen law has no reasonable relationship to the contract OR (b) provision was included without true mutual consent - e.g. law was misreped) 2) EXPRESS in terms of contract *If there is any doubt on the bar exam, find the clause invalid so that you can continue to the regular choice of law analysis

Question 35

What is the vesting rule for a CONTRACTS case? What are the 2nd Restatement considerations for a contracts case? What is the typical result?

Answer 35

1st Rst Vesting Rule: If the case is about formation (e.g. capacity, formalities, consideration), apply law of place of contracting. If the case is about performance, apply the law of the place of performance. 2nd Rst Factual Connections: places of contracting and negotiation, place of performance, where parties are from 2nd Rst Policy Principles: Policies of the forum and other state and expectations of the parties Typical Result:

Question 36

What is special about property conflict of law issues?

Answer 36

All three approaches use the same rules

Question 37

What are the conflict of law rules for property cases?

Answer 37

If Real Property -> apply the law of the situs If Personal Property -> If intervivos transaction, use location of property at time of transaction. If inheritance, apply law of decedent's domicile at date of death.

Question 38

What is the conflict of law rule for the validity of a marriage?

Answer 38

If a marriage is valid where performed, it will be recognized as valid everywhere, BUT when domiciliaries of one state temporarily relocate to another state only to enter a marriage that is disallowed by their home state, the state of domicile will not recognize the marriage

Question 39

What is the conflict of law rule for divorce?

Answer 39

Forum applies its own divorce law. The rationale is that to acquire jurisdiction for divorce, one of the parties must be domiciled in the state (therefore a state has an interest in applying its own law)

Question 40

What is the conflict of law rule for child legitimacy?

Answer 40

Legitimacy of a child is governed by the law of the mother's domicile at time of child's birth The validity of subsequent acts of legitimation concerning paternity are governed by the law of the father's domicile

Question 41

What are the two reasons to deviate from the result of a choice of law analysis?

Answer 41

1) FUNDAMENTAL Public policy (remember this only works for CoL, not for recognition of judgments b/c FF&C clause) 2) Procedural Rules (forum court applies its own procedural rules)

Question 42

What law applies to procedure?

Answer 42

The law of the forum usually applies on procedural matters

Question 43

For choice of law purposes, is a Statute of limitations procedural or substantive?

Answer 43

Generally statutes of limitations are procedural (so forum applies it own), BUT Exception 1: BORROWING STATUTE in place in the forum state direct the court to apply the shorter of the forum and foreign SoL periods Exception 2: If the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, the forum applies the entire statute (including the associated SoL) - the classic example is a wrongful death statute *But remember for Erie purposes, SoLs are substantive

Question 44

When does a natural person acquire a new domicile?

Answer 44

When they: 1) have become physically present in the new domicile 2) intend to remain in the new domicile *Doesn't matter if changed domicile to evade obligations elsewhere

Question 45

If an individual lacks domicilary capacity [children and those mentally incompetent], how do you determine where they are domiciled?

Answer 45

For Children: Newborns are assigned domicile of their parents. In cases of divorce, children are assigned the domicile of their custodial parent. For Incompetent Individuals: Assigned domicile of their parents. If becomes incompetent after acquiring a domicile by choice, they retain the chosen domicile. *Very little capacity is required for competence here