Conflict of Laws

Question 1

Where is an individual domiciled?

Answer 1

An individual’s domicile is determined by where he physically resides with intent to remain; while a person may have more than one residence, he cannot have more than one domicile. (Butt + brain)

Question 2

Where is a child domiciled?

Answer 2

A child or person without capacity is domiciled where the custodial parents are domiciled.

Question 3

What are the three choice of law approaches?

Answer 3

• Vested Rights (1st Restatement/Traditional)
• Most Significant Relationship (2nd Restatement)
• Governmental Interest

Question 4

What is the vested rights/1st Restatement approach? Including special rules?

Answer 4

Characterize the area of law as substantive or procedural
◦ Procedural? Apply forum court’s law
◦ Substantive? Characterize the claim (if not obvious) by using the forum court’s law
* Apply the law of the state where the last act needed to create liability took place
◦ Tort—usually the law of the place of injury (or where the tort occurred)
◦ Contracts—enforce any choice-of-law provision (B.3. below); if none, validity of contract, defenses to contract formation, and interpretation of the contract governed by law of the place of execution; details of performance (e.g., time and manner of performance) governed by place where contract was to be performed
◦ Real Property—where the property is located (the “situs”)
◦ Personal Property—where located at the time of the transaction; for succession issues, the law of the decedent’s domicile at death (absent a choice-of-law provision

Question 5

What is the most significant relationship/2nd restatement apporach?

Answer 5

Rule: Apply the law of the state with the most significant relationship to the issue:
◦ Consider connecting facts or contacts that link each state to the case; and
◦ Consider seven policy principles:
♦ Needs of the interstate system
♦ Relevant policies of the forum
♦ Policies of interested states
♦ Party expectations
♦ Policies underlying the substantive areas of law
♦ Certainty, predictability, and uniformity
♦ Ease of future application

Question 6

What are presumptive rules for the 2nd Restatement approach?

Answer 6

Tort—consider the following important contacts:
♦ Place of injury
♦ Place where conduct causing injury occurred
♦ Place of parties’ domicile or residence
♦ Place where the relationship is centered
Contract—enforce any choice-of-law provision if the selected state has a significant relationship; if no provision, apply the law of the place of negotiation and performance
♦ If the place of negotiation is not the place of performance, look to the contacts:
1. Place of contracting, negotiation and performance
2. Place where the subject matter is located
3. Domicile of the parties
◦ Real Property—where the property is located (the “situs”)
◦ Personal Property—where located at the time of the transaction; for succession issues, the law of the decedent’s domicile at death (absent a choice of law provision)

Question 7

What is the governmental interest approach?

Answer 7

• 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.
• False conflict: If the forum state does not have an interest, but another state does, the case should be dismissed provided forum non conveniens is available; if not available, then the forum state will apply the law of the other state.

Question 8

What are the three guiding principle clusters for the 2nd restatement approach?

Answer 8

• Promoting the relevant policies of the forum and other interested states
• Systemic interests (certainty, uniformity, predictability, and simplicity)
• Protecting the expectations of the parties (in the case of planned transactions)

Question 9

What are the constitutional limitations on choice of law?

Answer 9

• Under Due Process Clause, state must have a significant contact with a dispute before it applies its own law
• Full Faith and Credit—a state must give FFC to the public acts, records, and judicial proceedings of another state unless it would violate its own public policy

Question 10

When is a contractual choice of law provision valid?

Answer 10

A choice-of-law provision within a valid contract, will or trust will be enforced so long as it is not contrary to public policy and the state is reasonably related to the action.

Question 11

What choice of law applies to a) marriage validity, b) premarital agreement, c) divorce, and d) marital property?

Answer 11

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—is governed by the law of the state where domiciled at the time it was acquired (see Family Law Roadmap)

Question 12

What choice of law approach appleis to intangible property?

Answer 12

• Vested rights—apply the law where it was created
• Most significant relationship—apply the seven policy principles

Question 13

What choice of law approach applies to evidence?

Answer 13

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

Question 14

What choice of law approach applies to UCC transactions (including secured transactions)?

Answer 14

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

Question 15

How can a party argue against the application of foreign law?

Answer 15

1) Procedural (not substantive)
2) Against public policy
3) Penal law

Question 16

Is a statute of limitations substantive or procedural?

Answer 16

• Substantive for Erie purposes
• Procedural for choice of law purposes
• If applying the forum state’s SOL will not bar the claim, the most significant interest approach will apply another state’s SOL if the other state has a more significant relationship with the issue and it serves no substantial interest of the forum

Question 17

What choice of law rules apply in federal court?

Answer 17

In a diversity case, the court must apply the choice-of-law rules of the state in which it sits (Klaxon rule); if the venue is transferred to a federal court in another state, the original state’s choice-of-law rules apply

Question 18

When is a state law substantive for federal court diversity purposes?

Answer 18

When it is outcome determinative

Question 19

What are the three requirements for full faith and credit?

Answer 19

• Jurisdiction was proper
• Judgment was final; and
• Judgment was on the merits

NOTE: You can only contest proper jurisdiction if it was NOT raised in the prior proceeding.

Question 20

When do foreign country judgments get full faith and credit?

Answer 20

Not entitled to FFC but can be enforced as a matter of comity; in most states, a money judgment will be enforced under the Uniform Foreign Money Judgment Recognition Act (not applicable to some judgments, e.g., taxes or child support)

Question 21

When can child custody be modified under UCCJEA?

Answer 21

UCCJEA gives one state (“home state”) exclusive jurisdiction to make the initial order, though it is modifiable by a different state if the original state no longer has a significant connection to the child or parent and the new state can satisfy the requirements for exclusive jurisdiction.