Conflict of Laws Flashcards
Domicile
A person will have exactly one domicile:
- Individuals: where he physically resides with an intent to remain
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Corporations: state of incorporation
- PPB is not domicile, c.f. citizenship for purposes of PJ
- Children: where custodial parents are domiciled
Traditional approach (1st Restatement)
AKA Vested Rights Approach. Requires a court to apply one state’s law to all issues.
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Process:
- Apply forum court law to any procedural questions
- If not sure, use forum law to determine whether the question is one of substance or procedure
- If choice of law provision (wills, contracts) apply it
- Else, apply the law of the state where the last act needed to create liability took place
- Torts: place of injury (where the last element of tort act occurred)
- Real property: “the situs” aka location of property
- Personal property: where property was located at the time of transaction
- Succession: decedent’s domicile at death (except real property)
- Contracts: where contract was made or performance occurred (depending on issue)
- Apply forum court law to any procedural questions
Most significant relationship (2d Restatment)
Rule: apply the law of the state with the most significant relationship to the issue.
- Consider contacts of the transaction in light of seven policy principles (which fall into three clusters of motivations):
- Promote relevant policies of forum and other interested states
- Protect systemic interests (uniformity, predictability, certainty)
- Protect justified expectations of parties
Presumptive rules
If choice of law provision (wills, trusts, contracts), apply it. Else…
- Torts: place of injury (where the last element of tort act occurred)
- Real property: “the situs” aka location of property
- Personal property: where property was located at the time of transaction
- Intangible property: where it was created
- Succession: decedent’s domicile at death (except real property)
- Contracts: where contract was made or performance occurred (depending on issue)
Governmental interest
Presumes the forum state will apply its own law unless a party can show another state’s law should be applied instead (the substantive area of law is not a factor).
- To determine whether the forum state has an interest, look at whether applying its law will further the law’s policy or purpose, and if it protects or burdens the forum’s citizens.
- True conflict: If the forum state and another state both have an interest, the forum will re-examine the underlying policies to determine whether it has a legitimate interest in applying its own law and if so, will do so.
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False conflict: If the forum state does not have an interest, but another state does:
- And FNC is available: dismiss for FNC
- And FNC not available: forum state will apply the law of the other state.
- If neither state has interest, apply the law of forum state
Limitations on choice of law doctrine
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Constitutional limitations:
- DPC: state must have significant contacts with a dispute before it applies own law
- FFC: state must give FFC to public acts, records, and judicial proceedings of another state unless it would violate own public policy
- Statutory: a state law may dictate the choice-of-law approach (e.g., UCC, UPAA)
- By agreement: choice of law provisions within valid contract, will, or trust will be enforced to the extent that they do not violate public policy and the state is reasonably related to the action
- Note: Procedural law of forum will always apply
Substantive choice of law: corporations
Issues related to formation, dissolution, structure and internal affairs are determined by the place of incorporation
Substantive choice of law: family law
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Validity of a marriage is determined by the place where the marriage took place
- A marriage valid where entered will be given FFC unless it is against significant public policy, e.g., bigamy, incest
- Premarital agreement: the UPAA uses the most significant relationship approach
- Divorce: the grounds for divorce are determined by the law of the plaintiff’s domicile
- Marital property: governed by the law of the state where domiciled at the time it was acquired
Substantive choice of law: evidence
- Issues relating to admissibility are procedural and controlled by the forum state
- Applicability of a privilege depends on the choice-of-law approach and is procedural (vested rights) or subject to the law of the state with the most significant relationship
Substantive choice of law: UCC transactions
- If the parties do not stipulate to the applicable law, the forum will apply its version of the UCC; if a particular UCC provision dictates the law, a contrary agreement is effective only to the extent allowed by law
- Article 9: generally apply the law of the state where the debtor is located
- With issues regarding priority or perfection apply the law where the property (collateral) is located
Defenses to choice of law determination
- Law is procedural
- Note: this determination is different than that for Erie purposes
- Law violates a strongly held public policy
Substantive vs. procedural law (state choice of law)
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Procedural: Venue, pleadings, joinder, burdens of proof,
- Statute of limitations, unless most significant relationship approach applies AND other state has a more significant relationship with the issue
- Under vested rights approach: applicability of evidentiary privilege
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Substantive: parol evidence, statute of frauds
- Under vested rights approach: damages
Choice of state law in federal court
In diversity case, the court must apply the choice-of-law rules of the state in which it sits. If the venue is transferred to a federal court in another state, the original state’s (transferor court’s) choice-of-law rules apply (prevents forum shopping).
Conflicting judgments
Later in time (if valid) is entitled to FFC
Foreign country judgments
Not entitled to FFC, but can be enforced as a matter of comity
- Note: Most states follow Uniform Foreign Money Judgment Recognition Act, which enforces most money judgment (excludes taxes, child support, etc.)
