Conflict of Laws

Question 1

3 Requirements for Full Faith and Credit (FFC) Recognition

Answer 1

1) rendering court must have had jurisdiction (both personal and subject matter);
2) judgement must have been on the merits (both default judgements and consent judgments are on the merits); and
3) judgement must have been final (judgement on appeal in the rendering jurisdiction is not final; past due payments are final, but future payments are not final).

These 3 req’s are evaluated using the law of the rendering state. (But the law of the enforcing state governs the method of enforcement.)

Question 2

Valid Defenses to FFC

Answer 2

• Penal judgements are not enforced / not entitled to FFC (One that punishes an offense against the public; P was the state. Exception: tax judgements w state as P are enforceable. Punitive damages are not penal judgments.)
• Judgments based on extrinsic fraud are not enforced / not entitled to FFC. (Fraud that could not be corrected during proceedings.)

Question 3

INVALID defenses to FFC

Answer 3

• against PP of recognizing jurisdiction;

- rendering jurisdiction made a mistake / misapplication of law

Question 4

Which state’s law governs?

Answer 4

Generally, the governing law is the law selected by the forum court according to its choice of law approach (assuming no applicable constitutional or statutory restrictions).*

[So must figure out the choice of law approach used by the forum state.]

Question 5

Exceptions when in fed ct based on diversity of citizenship jurisdiction

Answer 5

• A federal court sitting in diversity applies the choice of law
  approach of the state in which it sits.
• When a diversity case is filed in a PROPER venue, and the case is transferred within the federal system, the fed ct applies the choice of law approach of the original (transferor) court.
• When the case is filed in an IMPROPER venue (or filed in a venue in defiance of a forum selection clause) the law of the transferee court (the court to which the case is transferred) will apply.

Question 6

If case is filed in state court, use ____ for choice of law approach.

Answer 6

Use that state’s choice of law approach

Question 7

Choice of Law MEE question - Paragraph 1

Answer 7

[State Issue & ID choice of law approach (which will be provided in the hypo).]

“The issue presented is which state’s law will govern the outcome
of this litigation. The governing law will be selected by the
forum court using the [fill in applicable choice of law approach].”

Question 8

Choice of Law MEE question - Paragraph 2

Answer 8

Describe the choice of law approach.

Plug in a stock paragraph depending on which of the three tested approaches is being applied.
The three approaches are
(1) the vested rights (First Restatement);
(2) interest analysis; or
(3) the most significant relationship (Second Restatement).

Question 9

Choice of Law MEE question - Paragraph 3

Answer 9

Here, you will consider the facts presented, apply the approach, and provide a conclusion. (Important: This conclusion should include both the governing law and the result.)

Question 10

APPROACH #1: VESTED RIGHTS (FIRST

RESTATEMENT) - Stock Language for Paragraph 2

Answer 10

“Under this approach the court will apply the law of that state
mandated by the applicable vesting rule. That rule is selected
according to the relevant substantive area of law.”

Question 11

APPROACH #1: VESTED RIGHTS (FIRST

RESTATEMENT) - Language for Paragraph 3

Answer 11

1st sentence: categorize the substantive area of law.
2nd sentence: state the applicable vesting rule.
3rd sentence: apply the vesting rule to determine the governing
law.
4th sentence: apply the governing law to determine the result.

EXAMPLE
“This is a torts case. Therefore, the applicable vesting rule is the
place of injury. Here, the injury occurred in Michigan and thus
Michigan law applies. Under Michigan law, a non-paying passenger
cannot recover against the driver, and so the claim is barred.”

Question 12

APPROACH #2: INTEREST ANALYSIS - Stock Language for Paragraph 2

Answer 12

“Under this approach the court will consider which states have
a legitimate interest in the outcome of the litigation. The forum
court will apply its own law as long as it has a legitimate interest.
If the forum state has no legitimate interest, it will apply the law
of another interested state.”

Question 13

APPROACH #2: INTEREST ANALYSIS - Language for Paragraph 3

Answer 13

Step #1: Discuss which states have legitimate interests.

Step #2: Characterize the type of conflict. A false conflict arises when only one state has a legitimate interest, and a true conflict arises when 2 or more states have a legitimate interest.

Step #3: Choose the governing law based on the type of
conflict. If a false conflict has arisen, you apply the law of the interested state. If a true conflict has arisen and the forum state is interested, you apply forum law.

Step #4: You apply the governing law to determine the result.

EXAMPLE
“In this case, only Illinois has a legitimate interest. It is interested
in permitting recovery to compensate its injured resident (the
plaintiff). Michigan is not interested in applying its restriction
against recovery simply because the accident occurred there.
Rather, it would be interested in applying its restriction only if
the defendant were a Michigan resident. But the defendant in
this case is from Illinois, so Michigan is not interested. This case
is therefore a false conflict, and Illinois law should apply. Under
Illinois law, the plaintiff may recover.”

Question 14

APPROACH #3: MOST SIGNIFICANT RELATIONSHIP (SECOND RESTATEMENT) - Stock Language for Paragraph 2

Answer 14

“Under this approach the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider connecting facts (where) and policy principles (why).”

[This approach is basically a blend of the first two.]

Question 15

APPROACH #3: MOST SIGNIFICANT RELATIONSHIP (SECOND RESTATEMENT) - Language for Paragraph 3

Answer 15

Step #1: Discuss connecting facts.

Step #2: Discuss policy principles.

Step #3: Choose governing law based on most significant relationship.

Step #4: Apply the governing law to determine result.

EXAMPLE
“In this case, the factual connections are split. The accident
occurred in Michigan, and the injury was sustained there. But
both the plaintiff and the defendant are from Illinois. As a matter
of policy, Illinois seems to have the greater interest because the
law at issue is a loss distribution rule and both parties share an
Illinois domicile. As a result, Illinois appears to have the most
significant relationship to the dispute and its law should apply.
Under Illinois law, the plaintiff may recover.”

Question 16

1st Restatement/Vested Rights Rule for Torts

Answer 16

Governing law is law where injury occurred

Question 17

2nd Restatement/Most Significant Relationship Considerations for Torts

Answer 17

Factual connections:

(1) place of injury;
(2) place of the conduct causing injury;
(3) place where the parties are at home; and
(4) place where the relationship, if any, is centered.

Policy Principles

(1) the relevant policies of the forum state and
(2) the relevant policies of other connected states.

[Don’t focus on memorizing these, just discuss/apply the facts and policies presented in the case.]

Question 18

Usual Outcomes in Tort Cases

Answer 18

For all 3 approaches, the governing law will almost always be the law of the place of injury.

But there are exceptions under the interest analysis and most significant relationship approaches. When law of place of injury will not be applied:
a) The rule at issue is a loss distribution rule (e.g., loss limitations (damage caps), vicarious liability rules, and rules eliminating liability like immunity rules); and
b) The parties share a common domicile.
When both conditions are satisfied, apply the law of the common domicile.

Question 19

Choice of Law provisions in contracts

Answer 19

Generally, a choice of law provision will be enforced if it is voluntary, valid, and express. But 2 main exceptions: (i) if the chosen state has no substantial r’ship to the parties or to the transaction and there is no other reasonable basis for the choice: or (ii) if the COL provision is contrary to a fundamental policy of a state w/ a materially greater interest than the chosen state in the determination of the particular issue. If exception present, ct will not enforce the parties’ COL provision.

If enforced, the provision displaces the choice of law analysis that the court would otherwise perform.

But if the choice of law provision is rejected, the court should then conduct a choice of law analysis. [If in doubt, find invalid.]

Question 20

Reasons to find a choice of law provision invalid

Answer 20

• no reasonable relation to the K; or

- included without true mutual consent

Question 21

1st Restatement/Vested Rights Rules for Contracts

Answer 21

Rule #1: If the case is about formation, apply the law of the place where the contract was executed. Examples of such issues: capacity; contractual formalities; and consideration.

Rule #2: If the case is about performance, apply the law of the place of performance. Examples of such issues include the time, place, and manner of performance; and excuses for nonperformance.

Question 22

2nd Restatement/Most Significant Relationship Rules for Contracts

Answer 22

Factual considerations include: (1) the place of contracting/execution; (2) the place of negotiation; (3) the place of performance; and (4) the place where the parties are at home.

Policy principles include: (1) the relevant policies of the forum state; (2) the relevant policies of other connected states; and (3) the reasonable expectations of the parties.

[Don’t focus on memorizing these, just discuss/apply the facts and policies presented in the case.]

Question 23

The Rules for Property under all 3 approaches

Answer 23

Regarding property, all approaches essentially apply the same rules.

Immovable Real Property: Apply the law of the situs (where the RP is located).

Movable Personal Property:
Rule #1: If the case involves an inter vivos transaction, apply the law of the situs at the time of transaction (where the property was when the transaction occurred).
Rule #2: If the case involves a matter relating to inheritance, apply the law of the decedent’s domicile at the date of death.

Question 24

The Rules for Marriages under all 3 approaches

Answer 24

Generally, if a marriage is valid where performed, it will be recognized as valid everywhere.

Exception: Temporary Relocation for Marriage. When domiciliaries of one state temporarily relocate to another state to enter into a marriage that violates a prohibitory rule (e.g. rules against incest, polygamy, and marriage under a minimum age) in their home/domicile state, the state of domicile will not recognize the marriage.

Question 25

The Rules for Divorces under all 3 approaches

Answer 25

Rule: The forum will apply its own divorce laws.

Rationale is that to acquire jurisdiction, at least one of the parties must be domiciled in the state. Therefore, a state has an interest in applying its own law.

Question 26

The Rules for Child Status / Legitimacy under all 3 approaches

Answer 26

Rule #1: Legitimacy of a child is governed by the law of the mother’s domicile at the time of the child’s birth.

Rule #2: The validity of subsequent acts of legitimation concerning paternity are governed by the law of the father’s domicile.

Question 27

Defenses to Choice of Law

Answer 27

1) Public Policy. A forum court will not apply a law that is against its
own fundamental public policy. Most applicable to the 1st Restatement / Vested Rights approach. [This rule does not apply to recognition of judgments.]

2) Procedural Rules. Regardless of the outcome of the choice of law analysis, the forum court will always apply its own procedural rules.

Question 28

Statute of Limitations as a Defense to Choice of Law

Answer 28

The general rule is that statutes of limitations have been viewed as procedural (meaning the forum ct applies its own SOL).

Exception #1: Borrowing Statutes: Borrowing statutes direct a court to look at both the forum limitations period and the foreign limitations period (in cases where foreign law governs under a normal choice of law analysis) and then to typically apply the shorter period.

Exception #2: Limitations that Condition a Substantive Right: If the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, then you apply the entire statute.

Question 29

Domicile definition (domicile by choice)

Answer 29

An individual with domicile capacity (discretionary by ct) acquires a domicile when two conditions are satisfied:
(1) physical presence in the new domicile; and (2) an intent to remain permanently (or indefinitely) in the new domicile.