Conflict of Laws

Question 1

Domicile is established by

Answer 1

(1) Physical presence and
(2) intent to remain indefinitely

Note: look to person’s actions or statements taken as a whole

Question 2

Children generally take the domicile of

Answer 2

their parent (or custodial parent)

Emancipated minors can choose own domicile

Question 3

3 general approaches to Choice of Law

Answer 3

(1) Traditional approach (vested rights)
(2) Governmental Interest Analysis
(3) Most significant relationship

Question 4

Territorial Approach to Choice of Law means

Answer 4

Each state determines the legal effect of events that occur within its territory.

Legal right occurs after significant event, vests under the laws of WHERE the event occurred

(significant event = where last act took place necessary to give P cause of action)

Question 5

Governmental Interest Analysis applies

Answer 5

to a set of facts if its application to those facts would promote the underlying purpose of the law (if the law of the state applies, it is said to be interested)

Question 6

Interest by states in governmental interest analysis is done by

Answer 6

balancing state interests

Both stated interested? True conflict, apply law of forum state

Only one state interested? False conflict, apply law of interested state

Question 7

A conduct regulating law is a law

Answer 7

designed to regulate conduct (e.g. declare some conduct as wrongful)

Most laws are conduct regulating

States have an interest in applying when wrongful conduct occurs within that state’s territory or when state domiciliary is injured

Question 8

A loss-shifting law determines

Answer 8

who can or cannot be liable (e.g. vicarious liability, immunity)

States have an interest in applying loss-shifting when doing so would benefit a state domiciliary

Question 9

The guiding principles for the Most Significant Relationship test are

Answer 9

(1) Promoting relevant policies of the forum and other interested states
(2) Systemic interests (Certainty, uniformity, predictability, simplicity - CUPS)
(3) Protecting the justified expectations of the parties (applies to planned transactions like contracts, trusts, real property)

Balancing contacts when considering whether to apply guiding principles

Question 10

Depecage is the application of

Answer 10

different states’ laws to different issues within the same case

Question 11

Renvoi is

Answer 11

the applying of the whole law of another state when applying the law of another state, including that state’s choice of law

(generally rejected by all 3 approaches to conflicts of law EXCEPT with regards to real property)

Question 12

Under the traditional approach, issues regarding tort law are resolved by

Answer 12

the law of the place where the tort occurred (injury happened)

Question 13

Under the governmental interest analysis approach, issues regarding tort law are resolved by

Answer 13

the state with the greatest interest in the case - look to Conduct Regulating and Loss Shifting

Conduct regulating:
(1) Occurs within territory
(2) Causes injury within territory, or
(3) Injures a domiciliary of that state

Loss Shifting
(1) Interest when it would benefit a domiciliary

Question 14

Under the most significant relationship approach, issues regarding tort law are resolved by

Answer 14

the state with the most significant relationship
(1) Place where injury occurred
(2) Place where conduct causing injury took place
(3) Domicile, residence, or state of incorporation
(4) Place where relationship between parties is centered

Note: presumption in favor of where tort occurred

Question 15

Choice of law clauses are

Answer 15

generally enforceable (so long as valid, applicable, related)

Exception: resolving the VALIDITY of a contract based SOLELY on choice of law clause

Question 16

Parties may choose law to apply to contract validity issues if

Answer 16

(1) Chosen state has a substantial relationship to the parties or transactions, OR
(2) There is some other reasonable reason for the choice

Question 17

The Traditional approach to resolving Contract Issues is to look to

Answer 17

place of contracting (where last act occurred - generally place of acceptance)

Note: Issues relating to performance are governed by the place of performance

Question 18

The most significant relationship test to issues involving contracts considers

Answer 18

(1) place of contracting, negotiation, and performance
(2) Place where subject matter of contracts is located
(3) Parties’ domicile / place of business or incorporation

If place of negotiation and performance are the same, presumption in favor of that place

Question 19

Immovable land is generally governed by

Answer 19

the law of the place where the property is located (situs)

Note: Apply the WHOLE law of the state, including state’s choice of law rules

Question 20

Tangible movable property is governed by

Answer 20

the UCC (mostly) otherwise apply the law of the state where the property was located at the time of the transaction

Question 21

Intangible movable property is governed by

Answer 21

the law of the state in which the tangible property was created

Question 22

Issues concerning moveable property at the time of a decedent’s death are governed by

Answer 22

the laws of the decedent’s domicile at the time of death

Exceptions:
(1) Choice of law specified in will or trust
(2) Preference in favor of validity

Question 23

Internal v. External affairs of a corporation

Answer 23

Internal: Concern the rights and obligations of participants in a venture, governed by laws of state of incorporation

External: Involve transactions with 3rd parties, treat corporation like a natural person (e.g. tort / contract issues)

Question 24

Validity of a marriage under the Traditional Approach is governed by

Answer 24

the law of the place where the marriage was celebrated

Exception:
-Violates a particularly strong public policy

Question 25

Validity of marriage under 2nd restatement (most significant relationships test) is governed by

Answer 25

the law of the place where the marriage was celebrated (if valid there, valid everywhere) UNLESS it violates public policy of the state with the most significant relationship

Question 26

Movable marital property is governed by

Answer 26

the law of the state where the couple was domiciled at the time of acquisition

Question 27

Property acquired during marriage has

Answer 27

the same character as the funds or property used to acquire it

Question 28

Proof of Foreign Law is

Answer 28

not considered law under Traditional approach (must be pleaded)

is permitted under modern approach (through judicial notice) though may require pleading and proof for foreign country’s law

Question 29

Defenses to Foreign Law

Answer 29

(1) Penal Law
(2) Public Policy Exception
(3) Substance v. Procedural Distinction

Question 30

Under penal law exception, a court will

Answer 30

not enforce the penal law of another state

Note: This does NOT contain civil recovery (or punitive damages) or tax laws

Question 31

Under the public policy exception, a court may

Answer 31

refuse to apply foreign law if that law violates a fundamental land strongly held public policy of the forum state (both traditional and modern approach)

NARROW defense, court would dismiss without prejudice

Question 32

Substance v. Procedure Distinction

Answer 32

Substantive laws regulate behavior outside court and procedural laws regulate people’s behavior within courts

Note: Forum law always govern procedural

Question 33

Parole Evidence is a

Answer 33

substantive rule

Question 34

Evidentiary privileges is a

Answer 34

procedural rule under Traditional approach and governed by Forum law

Modern approach: apply law of state with most significant relationship

Question 35

Damages is

Answer 35

a substantive issue as to measure and types of damages under Traditional approach (Note: statutory limits are procedural)

assessed under a significant relationship test in the Modern approach

Question 36

Statutes of Limitations are considered

Answer 36

procedural except if inextricably bound up with a statutory right making it substantive under Traditional approach

under the law of the forum state in the Modern approach unless it would serve no substantial interest of the forum and the claim would be barred under SoL of state with the most significant relationship

Question 37

Constitutional limitations on Conflict of Laws allow

Answer 37

a state to apply its own substantive law only if it has a significant contact or an aggregation of contacts with the issue such that the application of its own law is neither arbitrary nor fundamentally unfair

Always include in an answer, it’s always applicable

Question 38

Under the Full Faith & Credit clause, a state may not

Answer 38

refuse to entertain claims under another state’s law SIMPLY because that law comes from another state (must have a reason)

Question 39

Under Erie a federal court sitting in diversity applies

Answer 39

the substantive law of the state in which the federal court sits

Question 40

SoL under Traditional Choice of Law v. Erie

Answer 40

Traditional Choice of Law: Procedural

Erie: Substantive

Question 41

2 wrinkles to Erie

Answer 41

(1) When a state law is arguably substantive, balancing test is considered and federal court may apply federal common law

(2) A Codified federal rule (e.g. FRCP or Rule of Evidence) must be applied in federal court

Question 42

Klaxton Rule

Answer 42

Federal court sitting in diversity must apply the choice of law rules for the state in which it sits

Exception: If case is filed in State A but is properly transferred to Federal court in State B, federal court will apply conflict of law rules for State A

Question 43

There is no public policy defense to

Answer 43

enforcing sister state judgments

Question 44

When a final judgment is inconsistent with another final judgement, the

Answer 44

most recent (last judgement to be made) ie entitled to full faith and credit

Question 45

A judgment will NOT be on the merits if

Answer 45

it is dismissed for lack of jurisdiction, or it was dismissed without prejudice

Question 46

Workers compensation awards may be supplemented by other states’ awards unless

Answer 46

the law of the initial state bars additional recovery using unmistakeable language

Question 47

Bilateral v. Ex Parte Divorce

Answer 47

Bilateral = Court has Jx over both parties

Ex Parte = Court has Jx over just one party (can only issue divorce, no distribution of property)

Question 48

The issue of domicile in an ex part divorce may

Answer 48

be challenged in enforcement of the divorce decree (a judgement)

be conditional on a durational residency requirement (prevent going a state for 1 day to get an ex part divorce)

Question 49

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) establishes

Answer 49

one home state which makes initial custody decision for children (child’s home state or state of domicile) and must be given full faith and credit

only modify if state no longer has significant connection to child / parents and new court meets test for exclusive jurisdiction

Question 50

Foreign country judgement are

Answer 50

usually enforced as a matter of comity (mutual respect) unless repugnant to forum’s public policy

Question 51

Uniform Foreign Money Judgement Recognition Act generally allows

Answer 51

foreign money judgements to be enforceable in same manner as sister state judgements and non-money judgements not explicitly covered but enforced as a matter of comity

Question 52

Default rules for types of contracts

Answer 52

(1) Land contracts - law of situs
(2) Personality contracts - where delivery occurs
(3) Life insurance contracts - insured’s domicile
(4) Casualty insurance contracts - where insured risk is located
(5) Loans - where repayment is required
(6) Suretyship contracts - state governing principal obligation
(7) Transportation contract - law of state of departure

Question 53

A state may apply its worker’s compensation claim if

Answer 53

there’s a legitimate interest in an injury and its consequences

Question 54

When a conflict of law involves a secured transaction, the law

Answer 54

of the state in which the debtor is located will control