Conflict of Laws

Question 1

When is recognition required for a sister state judgment?

Answer 1

When the requirements for FFC are satisfied and there are no valid defenses.

Question 2

What are the three full faith and credit requirements?

Answer 2

1. Jurisdiction
2. On the merits
3. Finality

Question 3

What is the jurisdiction requirement for FFC?

Answer 3

The rendering state must have had PJ and SMJ over the case.

Exception: where the issue of jurisdiction was fully and fairly litigated, that decision is entitled to FFC (you can only challenge jurisdiction once)

Question 4

What is the merits requirement for FFC?

Answer 4

The judgment entered by the rendering court must have been on the merits.

Examples of judgments not on the merits: SoL, lack of jurisdiction, misjoinder, improper venue, failure to state a claim.

Question 5

Is a default judgment on the merits for FFC purposes?

Answer 5

Yes because it treats all factual contentions as admitted.

Question 6

What is the finality requirement for FFC?

Answer 6

Judgment entered by the rendering court must be final. Judgments on appeal and modifiable decrees are not final.

Question 7

What state law is used to determine the three FFC requirements?

Answer 7

The law of the rendering state

Question 8

What are the valid defenses to FFC?

Answer 8

1. Penal judgments that punish an offense against the public are not entitled to FFC
2. Extrinsic fraud that could not be corrected during the regular course of proceedings leading to the judgment is not entitled to FFC.

Public policy and mistake arguments are NOT defenses

Question 9

Comity

Answer 9

A recognizing court will exercise discretion to decide whether the foreign judgment (rendering court in a foreign country) should be recognized. Ask two questions:
1. Did the foreign court have jurisdiction?
2. Were the procedures in the foreign court fair?

Question 10

Which state’s law will govern?

Answer 10

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

Exceptions: Federal court sitting in diversity applies choice of law from state where it sits, and transferred diversity cases (proper vs. improper venue)

Question 11

What are the restrictions on choice of law?

Answer 11

1. Constitutional - limits only if a state’s law is chosen that has no significant contact with or legitimate interest in the litigation.
2. Statutory - if the forum state has a statute that directs choice of law, then the forum court should apply that statute rather than the usual choice of law approach.

Question 12

What is the first paragraph for every choice of law answer?

Answer 12

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 [choice of law approach given in the question].

Question 13

What is the vested rights approach? First Restatement

Answer 13

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 14

What is the interest analysis approach?

Answer 14

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 15

What is a false conflict?

Answer 15

When only one state has a legitimate interest. If there is a false conflict, apply the law of the interested state.

Question 16

What is the most significant relationship approach? Second Restatement

Answer 16

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 and policy principles.

Question 16

What is the torts vesting rule under the First Restatement?

Answer 16

The governing law is the law where the injury occurred.

Question 17

What are the factual considerations for torts under the Second Restatement?

Answer 17

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

Question 18

What are the policy principles for torts under the Second Restatement?

Answer 18

Relevant policies of the forum state and the other connected states.

Question 19

For torts, the law will almost always be where the injury took place. What conditions might lead to an exception?

Answer 19

1. When the rule at issue is a loss distribution rule (look for damage caps, VL, immunity); AND
2. The parties share a common domicile.

Question 20

When will a choice of law provision for contracts be upheld?

Answer 20

When it is valid and express. A choice of law provision may be invalid if it has no reasonable relationship to the contract and it was included without true mutual consent.

Question 21

What are the vesting rules for contracts under the First Restatement/vested rights approach?

Answer 21

1. If case is formation issue –> place of contracting
2. If case is performance issue –> place of performance

Question 22

What are the factual considerations for contracts issues under the Second Restatement?

Answer 22

1. Place of contracting
2. Place of negotiation
3. Place of performance
4. Place where parties are at home

Question 23

What are the policy principles for contracts issues under the Second Restatement?

Answer 23

Relevant policies of forum and other connected states AND reasonable expectations of the parties.

Question 24

What law do you apply for issues concerning immovable (real) property?

Answer 24

Law of the situs (where real property is located)

Question 25

What law do you apply for issues concerning movable (personal) property?

Answer 25

-Inter vivos transaction: law of situs at the time of the transaction
-Inheritance matter: law of decedent’s domicile at death

Question 26

Where is a marriage valid?

Answer 26

If it was valid where performed, it will be recognized as valid everywhere except when domiciliaries temporarily relocate to another state to enter into a marriage that violates a prohibitory (public policy) rule in their home state.

Question 27

What law will be applied for divorce?

Answer 27

A forum will apply its own law since at least one of the parties must be domiciled there for jurisdiction.

Question 28

What law governs legitimacy issues?

Answer 28

1. Legitimacy of child: law of mother’s domicile at the time of birth
2. Subsequent acts of legitimation concerning paternity: law of father’s domicile

Question 29

What is the public policy defense to choice of law?

Answer 29

A forum court will not apply a law that is against its own fundamental public policy (most applicable to First Restatement). Does not apply to recognition of judgments.

Question 30

What is the procedural rules defense to choice of law?

Answer 30

The forum court will always apply its own procedural rules, regardless of the outcome of the choice of law analysis.
-Statutes of limitation are viewed as procedural (but they are substantive for Erie purposes)

Question 31

How are borrowing statutes treated?

Answer 31

Borrowing statutes direct a court to look at both the forum limitations period and the foreign limitations period, and typically apply the shorter period.

Question 32

How are statutes creating a substantive right treated?

Answer 32

If normal choice of law requires application of a foreign statute that creates a substantive right, then you apply the entire statute.

Question 33

Domicile

Answer 33

An individual with domicile capacity acquires a domicile with (1) physical presence and (2) an intent to remain indefinitely or permanently

Question 34

What is domicile by operation of law?

Answer 34

An individual who lacks capacity to choose a domicile is assigned one by law.

Question 35

How are the domiciles of children assigned by law?

Answer 35

1. Newborns: domicile of parents
2. Divorce: domicile of custodial parent

Question 36

How are the domiciles of incompetents assigned by law?

Answer 36

1. Mentally incompetent: domicile of parents
2. Becomes incompetent after acquiring domicile by choice: retain chosen domicile