Conflict of Laws Flashcards
Domicile is established by
(1) Physical presence and
(2) intent to remain indefinitely
Note: look to person’s actions or statements taken as a whole
Children generally take the domicile of
their parent (or custodial parent)
Emancipated minors can choose own domicile
3 general approaches to Choice of Law
(1) Traditional approach (vested rights)
(2) Governmental Interest Analysis
(3) Most significant relationship
Territorial Approach to Choice of Law means
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)
Governmental Interest Analysis applies
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)
Interest by states in governmental interest analysis is done by
balancing state interests
Both stated interested? True conflict, apply law of forum state
Only one state interested? False conflict, apply law of interested state
A conduct regulating law is a law
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
A loss-shifting law determines
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
The guiding principles for the Most Significant Relationship test are
(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
Depecage is the application of
different states’ laws to different issues within the same case
Renvoi is
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)
Under the traditional approach, issues regarding tort law are resolved by
the law of the place where the tort occurred (injury happened)
Under the governmental interest analysis approach, issues regarding tort law are resolved by
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
Under the most significant relationship approach, issues regarding tort law are resolved by
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
Choice of law clauses are
generally enforceable (so long as valid, applicable, related)
Exception: resolving the VALIDITY of a contract based SOLELY on choice of law clause
Parties may choose law to apply to contract validity issues if
(1) Chosen state has a substantial relationship to the parties or transactions, OR
(2) There is some other reasonable reason for the choice
The Traditional approach to resolving Contract Issues is to look to
place of contracting (where last act occurred - generally place of acceptance)
Note: Issues relating to performance are governed by the place of performance
The most significant relationship test to issues involving contracts considers
(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
Immovable land is generally governed by
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
Tangible movable property is governed by
the UCC (mostly) otherwise apply the law of the state where the property was located at the time of the transaction
Intangible movable property is governed by
the law of the state in which the tangible property was created
Issues concerning moveable property at the time of a decedent’s death are governed by
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
Internal v. External affairs of a corporation
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)
Validity of a marriage under the Traditional Approach is governed by
the law of the place where the marriage was celebrated
Exception:
-Violates a particularly strong public policy
Validity of marriage under 2nd restatement (most significant relationships test) is governed by
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
Movable marital property is governed by
the law of the state where the couple was domiciled at the time of acquisition
Property acquired during marriage has
the same character as the funds or property used to acquire it
Proof of Foreign Law is
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
Defenses to Foreign Law
(1) Penal Law
(2) Public Policy Exception
(3) Substance v. Procedural Distinction
Under penal law exception, a court will
not enforce the penal law of another state
Note: This does NOT contain civil recovery (or punitive damages) or tax laws
Under the public policy exception, a court may
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
Substance v. Procedure Distinction
Substantive laws regulate behavior outside court and procedural laws regulate people’s behavior within courts
Note: Forum law always govern procedural
Parole Evidence is a
substantive rule
Evidentiary privileges is a
procedural rule under Traditional approach and governed by Forum law
Modern approach: apply law of state with most significant relationship
Damages is
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
Statutes of Limitations are considered
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
Constitutional limitations on Conflict of Laws allow
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
Under the Full Faith & Credit clause, a state may not
refuse to entertain claims under another state’s law SIMPLY because that law comes from another state (must have a reason)
Under Erie a federal court sitting in diversity applies
the substantive law of the state in which the federal court sits
SoL under Traditional Choice of Law v. Erie
Traditional Choice of Law: Procedural
Erie: Substantive
2 wrinkles to Erie
(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
Klaxton Rule
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
There is no public policy defense to
enforcing sister state judgments
When a final judgment is inconsistent with another final judgement, the
most recent (last judgement to be made) ie entitled to full faith and credit
A judgment will NOT be on the merits if
it is dismissed for lack of jurisdiction, or it was dismissed without prejudice
Workers compensation awards may be supplemented by other states’ awards unless
the law of the initial state bars additional recovery using unmistakeable language
Bilateral v. Ex Parte Divorce
Bilateral = Court has Jx over both parties
Ex Parte = Court has Jx over just one party (can only issue divorce, no distribution of property)
The issue of domicile in an ex part divorce may
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)
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) establishes
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
Foreign country judgement are
usually enforced as a matter of comity (mutual respect) unless repugnant to forum’s public policy
Uniform Foreign Money Judgement Recognition Act generally allows
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
Default rules for types of contracts
(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
A state may apply its worker’s compensation claim if
there’s a legitimate interest in an injury and its consequences
When a conflict of law involves a secured transaction, the law
of the state in which the debtor is located will control
