Conflict of Laws Flashcards
Whenever a legal problem involves incidents, issues, or parties connected to more than one state, ________ must determine which state’s laws should control.
The forum court
The first step in any conflict of laws analysis is _____________.
Determining whether the deciding court deciding has proper jurisdiction over:
1. The parties AND
2. The subject matter
A judgment rendered in the absence of _______ will not be recognized or enforced in other states.
Proper jurisdiction
The general role is that courts of __________ have personal jurisdiction over that person for any claim even if the claim is not otherwise connected with the forum.
Person’s domicile
Limitation imposed by contract is also known as __________.
Choice of forum by agreement
The parties’ agreement as to the place of action cannot oust ___________.
A state that has proper judicial jurisdiction
An agreement over choice of forum will be given effect unless ___________.
it is unfair or unreasonable
A state does not obtain personal jurisdiction over an individual who appears in the action for the sole purpose of _____________.
Objecting to the forum’s exercise or jurisdiction over her
Any appearance without _______ waives an individual’s objection to personal jurisdiction.
Raising the jurisdictional objection
A state will not exercise judicial jurisdiction over D or her property if obtained via ____ or _____.
Fraud
Unlawful force
A state will not exercise judicial jurisdiction when inaction on its part is required by ________ or ___________.
International law
The needs of judicial administration
A state will not exercise judicial jurisdiction when forbidden to do so by ______ or _______
Customary international law
Provisions of some treaty/other formal agreement to which the state is a party
It is customary for a state to grant immunity from ______ to nonresidents appearing in a case
Service of process
Immunity from service to process can be granted by:
- Witnesses
- Lawyers
- The parties
What is the doctrine of forum non conveniens?
A state won’t exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action as long as there is a more appropriate available forum
To satisfy the due process clause of the US Constitution, a non-domiciliary D not served in the forum must have minimum contacts such that ___________.
Maintaining the suit doesn’t offend traditional notions of fair play and substantial justice
A choice of law issues where:
Laws of 2+ states:
1. Are potentially relevant to a case AND
2. Differ materially
On a general level, how does the US Constitution apply to choice of law?
Places limits on the forum state’s application of its own substantive law
A court sitting in a state must apply that state’s choice of ____ approach.
Law
The forum may not apply its own substantive law to a particular issue unless application of the law would be reasonable in light of:
- The relationship of the state AND
- Of other states to the person, thing, or occurrence involved
For a state’s substantive law to be selected in a constitutionally permissible manner:
- State must have significant contact/aggregation of contacts AND
- Choice of law neither arbitrary nor fundamentally unfair
_________ will typically satisfy the due process requirements of finding a change of law to be constitutional.
Plaintiff’s domicile
If a state has only ______ contact with the parties and the occurrence or transaction, application of its law is unconstitutional.
Insigificant
Even if a state may apply its own law, it is not constitutionally required to ______.
do so
The same standard used for ______ will also determines whether a forum’s application of its own law violates the Full Faith and Credit Clause
Due process
When it comes to competing laws, what standard is used to determine if a state’s application of its own laws satisfies the full faith and credit rule?
- Significant contact/aggregation of contacts AND
- Choice of law neither arbitrary nor fundamentally unfair
Where are the US Constitution’s two “privileges and immunities” clauses?
- Article IV §2
- 14th Amendment
Privileges and immunities protected by the constitutional clauses must be sufficiently important to ________.
Bear on the vitality of the nation as a whole
When a state law treats non-domiciliaries differently, the state must show that:
- There is a substantial reason for the difference AND
- It bears a substantial relationship to the state’s objective
The rules of Conflict of Laws sometimes accord determinative significance to domicile because of __________.
The person’s identification with that place
How many domiciles does a person have?
Always at least one, and always only one
Domicile by operation of law arises when __________.
A person lacks the legal capacity to choose a domicile
Where does a minor have domicile?
Same domicile as the parent with whom she lives
What is domicile of origin?
Domicile which a person has at birth
The domicile of a child of married parents at birth is _________.
Domicile of father
The domicile of a child of an unmarried/widowed mother at birth is _________.
Domicile of the mother
In the case of divorce or separation of the parents, a child’s domicile is __________.
The same as that of the parent awarded custody of the child
If a child is abandoned by one parent, the child’s domicile is __________.
That of the non-abandoning parent
If a child is abandoned by both parents at different times, the child’s domicile is _______.
Domicile possessed by the parent who abandoned the child last
If a child is abandoned by both parents simultaneouly, the child’s domicile is _______.
The domicile of the father at the time of abandonment
Where does an adopted child have domicile?
Domicile of her adoptive parents
Where does an emancipated child have domicile?
The child may acquire a domicile of choice
Where does an incompetent have domicile if she previously was competent?
Where she had domicile prior to the incompetency
Where does an incompetent have domicile if she was never competent?
Domicile of her parents
At common law, where did a married woman have domicile?
Where her husband had domicile
Where does a wife living with her husband have domicile?
Same place that he does
Where does a wife living apart from her husband have domicile?
She may acquire a separate domicile of choice
Where is a corporation domiciled?
Wherever it is incorporated
If an individual has legal capacity, where does she have domicile?
In the state she has chosen
In order to determine where domicile exists, a court will look to:
- Legal capacity
- Physical presence in the state AND
- Intent to be domiciled there
A person will retain her current domicile by choice until ________.
She satisfies the requirements elsewhere
To meet the physical presence requirement of domicile, __________ is not necessary.
Establishment of a home in a particular dwelling
Physical presence even for a moment is enough to show domicile as long as ___________.
Requisite intent is present
When a person has more than one dwelling place, her domicile is:
- Earlier dwelling place UNLESS
- Second dwelling is principal home
Where is a person’s principal home?
Home to which she is most closely related; usually where she and her family spend the most time
To acquire a domicile of choice in a place, a person must intend to _________.
Make that place her home, at least for the time being
It is immaterial what _____ led a person. to a new domicile.
motives
A party’s domicile at origin remains that party’s domicile until it is changed by either _____ or _____.
Operation of law
Choice
A minor’s domicile will change with her parents’ domicile until ________.
The child reaches the age of 18
A forum uses ________ law to determine domicile.
Its own law
When will an issue of choice of law arise in regards to domicile?
- Domicile is fact necessary to judicial jurisdiction of forum
- Domicile is fact necessary for forum to apply its local law or create/affect legal interests
- Domicile is fact necessary to the power of courts or officials to act
- Forum passes upon the judicial jurisdiction of another state
- Identifying the state of applicable law
What are the three approaches to choice of law issues?
- Vested rights (traditional)
- Interest analysis (contemporary)
- Most significant relationship test (contemporary)
What four concepts/issues arise regardless of what choice of law approach is used?
- Characterization
- Renvoi
- Debecage
- Proof of foreign law
What is characterization in connection to choice of law?
Determination of what type of claim is involved in order to determine:
1. Which choice of laws rule apply
2. On what issue laws differ AND
3. The categorization of an issue as procedural/substantive for choice of law purposes
Renvoi means ______.
Send back
What is the concept of renvoi?
Issues arising when applying a foreign state’s choice of law would return the case to the forum in a neverending cycle
When is there a “never ending circle” in terms of choice of law?
Law of the forum specifies that a foreign law shall govern a judicial event, but that foreign law remits it to the law of the forum to determine it; it begins a cycle
What is the question for renvoi?
When the choice-of-law rules of the forum refer a juridicial matter to a foreign law for decision:
1. Does this reference include the choice-of-law rules of that foreign law OR
2. Is it merely a reference to purely internal rules of law of the foreign system?
What is the question for renvoi?
When the choice-of-law rules of the forum refer a juridicial matter to a foreign law for decision:
1. Does this reference include the choice-of-law rules of that foreign law OR
2. Is it merely a reference to purely internal rules of law of the foreign system?
What is the question for renvoi?
When the choice-of-law rules of the forum refer a juridicial matter to a foreign law for decision:
1. Does this reference include the choice-of-law rules of that foreign law OR
2. Is it merely a reference to purely internal rules of law of the foreign system?
What is more common, accepting or rejecting renvoi?
Most states reject renvoi
Some states accept renvoi and _________.
Apply their own law
The majority of states reject renvoi and ______________.
Apply the domestic law of the foreign country but not its choice-of-law rules
Rejecting renvoi requires proof of _______.
The domestic law of the foreign state
depecage means ________
Cutting up
The doctrine of depecage allows courts to ____________.
Apply the laws of different jurisdictions to different issues within the same case
Under the doctrine of depecage, the court applies the choice-of-law rules ________.
Issue-by-issue
Under the ______ Restatement, courts could not engage in depecage.
1st
Federal courts take judicial notice of the law of every ___________
states in the US
Most state courts are bound to take judicial notice of law from:
- Other states AND
- Federal law
A party who intends to raise an issue about a foreign country’s law must:
Give notice by
1. A pleading OR
2. Other writing
If the foreign law is not proved, the court may:
- Presume foreign law is similar to the forum law
- Apply the forum law OR
- Dismiss the action
What is the 1st Restatement theory about choice of law?
Vested rights
What is the vested rights approach to choice of law?
Vested rights approach to choice of law applies the law where P’s right vest
Where do a party’s rights vest?
At a:
1. Particular place AND
2. Point in time
What are the steps of addressing choice of law via vested rights?
- Identify the relevant event
- Apply the law of the state where that event took place
What is the interest analysis approach to choice of law?
If the forum state has an appropriate “interest” in the case/issue, the forum stae applies its own law.
Otherwise, the forum must apply the law of the state that DOES have an interest
The cornerstone of the interest analysis approach to choice of law is _________.
Determining when a state has an “interest”
There is no weighing of ______ interests in interest analysis.
Governmental
The interest analysis approach to choice of law does not vary with __________.
Substantive area of law
In evaluating whether a state has an appropriate interest in a case/issue under the issue analysis approach to choice of law, the following outcomes are possible:
- False conflict
- True conflict
- Disinterested forum
- Unprovided for case
A false conflict arises when _______.
Only one state has an actual interest in having its law applied
Under interest analysis, what occurs if a false conflict arises?
Forum court will apply the law of the state with an actual interest in the outcome of the litigation
A true conflict arises when __________.
2+ states, including the forum state, have an interest in the litigation
Under interest analysis, what occurs if a true conflict arises?
The forum will apply its own law
Disinterested forum arises when _______________.
The forum ha no interest, but 2+ states (not including the forum state) have an interest in the litigation
Under interest analysis, what occurs if a disinterested forum arises?
Dismiss the case under forum non conveniens
If a disinterested forum arises, if forum non conveniens is not available, the forum state can either:
- Apply the law of the state with a more legitimate interest OR
- Apply the law of the state that most closely resembles its own law
An unprovided for case arises when ________.
No state has an interest in applying its own law
Under interest analysis, what occurs if a unprovided for case arises?
Forum court will apply its own law
Under the doctrine of issue analysis, an unprovided for case is also known as _________.
No interest
What is the most significant relationship approach to choice of law?
The forum looks at all existing contracts between the various parties to a suit and various jurisdictions.
Ultimately, the court should choose the law of whatever jurisdiction is most closely tied to the case
What general factors should be considered according to the “most significant relationship” approach to choice of law?
- Needs of interstate & international systems
- Relevant policies of the forum
- Relevant policies of other interested states & relative interests of those states in the determination of the particular issue
- Protection of justified expectation
- Basic policies underlying the particular field of law
- Certainty, predictability, & uniformity of result
- Ease in the determination & application of the law to be applied
Why consider the needs of interstate and international systems when using the “most significant relationship” approach to choice of law?
Goal is avoiding conflicts rules that impede commerce
