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Conflict of Laws Flashcards

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1
Q

On the exam, you should look for conflicts issues when the facts include _____

A

connections to multiple states.
+ Additionally, conflicts issues are usually combined with other subjects, especially family law, federal procedure, or torts.

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2
Q

There are two important but distinct testing areas for conflicts:

A
  • Recognition of judgments; and
  • Choice of law.
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3
Q

A recognition of judgments question may arise when two conditions are satisfied:

A
  • A judgment has been entered by a court in one jurisdiction (rendering jurisdiction); and
  • A party is seeking to have that judgment recognized by a court in a different jurisdiction (recognizing jurisdiction)
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4
Q

Reasons for a Party to Seek Recognition

A
  • Plaintiffs will most often seek recognition in order to access enforcement mechanisms in the rendering state.
  • Defendants will most often seek recognition to prevent a plaintiff from relitigating a claim or an issue.
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5
Q

Two categories of analysis for recognition of judgments

A
  • Sister State
  • Foreign
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6
Q

If the rendering court is a court in a sister state, then the source of the obligation to recognize the judgment is ____

A

constitutional (in other words, the Full Faith and Credit Clause applies).

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7
Q

By statute, full faith and credit principles also apply to the recognition of judgments between _____

A

federal courts and state courts.

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8
Q

Sister states = two steps or questions to ask:

A
  1. Are the requirements for full faith and credit satisfied?; and
  2. Are there any valid defenses?
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9
Q

Requirements that must be satisfied before the Full Faith and Credit Clause kicks in.

A
  1. Jurisdiction: The rendering state must have had jurisdiction over the parties (that is, personal jurisdiction) and jurisdiction over the subject matter.
  2. On the Merits: The judgment entered by the rendering state must have been on the merits.
  3. Finality: The judgment entered by the rendering court must be a final judgment.
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10
Q

Exception to jurisdiction requirement for full faith and credit

A

When the issue of jurisdiction has been fully and fairly litigated, the jurisdictional determination is itself entitled to full faith and credit.

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11
Q

Examples of judgments not on the merits include dismissals based on:

A
  • Lack of jurisdiction (either personal or subject matter);
  • Misjoinder;
  • Improper venue; and
  • Failure to state a claim (sometimes = depends on whether it was dismissed with/without prejudice).
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12
Q

On the merits requirements: Default and Consent Judgments

A
  • A default judgment treats all factual contentions as admitted and is therefore on the merits for full faith and credit and recognition of judgment purposes.
  • A consent judgment entered after settlement also is considered on the merits for purposes of recognition.
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13
Q

Requirement #3: Finality: The most common application here is a judgment _____, which is not final.

A

on appeal in the rendering jurisdiction

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14
Q

Orders that are ____ not final for _____ payment and enforcement

A

modifiable; prospective

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15
Q

What law applies when determining if the requirements of full faith and credit are met?

A
  • Evaluated using the law of the rendering state.
  • The law of the enforcing state governs the method of enforcement
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16
Q

The following are valid defenses to full faith and credit (high level):

A
  • Penal Judgments
  • Extrinsic Fraud
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17
Q

A penal judgment is one that ____

A

punishes an offense against the public.
-> In practice, this means that the plaintiff in the suit that led to the judgment was the state.

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18
Q

Extrinsic fraud is fraud that ____

A

could not be corrected during the regular course of proceedings leading to the judgment.

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19
Q

Attractive but invalid defenses to full faith and credit:

A
  • Public policy.
  • Mistake.
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20
Q

If the rendering court is a court in a foreign country, then the source of the obligation to recognize the judgment is ____

A

comity or treaty

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21
Q

Under principles of comity, a recognizing court will ____

A

exercise discretion to decide whether the foreign judgment should be recognized.
-> Many of the same principles as full faith and credit will be considered to guide the court’s discretion

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22
Q

Many of the same principles as full faith and credit will be considered to guide the court’s discretion (for example, is the foreign judgment final? Was the foreign judgment on the merits?).

But there are additional questions that a recognizing court may ask follow.

A
  • Did the Foreign Court Have Jurisdiction?
  • Were the Procedures in the Foreign Court Fair?
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23
Q

The foreign court must have had jurisdiction. The court has ____

A

greater leeway to assess jurisdiction than in the full faith and credit context (that exception to litigating the issue might not apply)

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24
Q

A choice of law question may arise when two conditions are satisfied:

A
  • The lawsuit involves factual connections with multiple states; and
  • The multiple states will have different laws leading to different
    results.
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25
Q

Under choice of law questions the core question is: “Which state’s law will govern?” The core answer is:

A

The governing law is the law selected by the forum court according to its choice of law approach (assuming no applicable constitutional or statutory restrictions)

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26
Q

There are exceptions to the core answer when the case is in federal court based on ____.

A

diversity of citizenship jurisdiction

27
Q

Diversity Cases Filed in Federal Court

A

A federal court sitting in diversity applies the choice of laTransferred Diversity Cases approach of the state in which it sits.

28
Q

Transferred Diversity Cases

A
  • When a diversity case is filed in a proper venue, and the case is transferred within the federal system, the federal court applies the choice of law approach of the original (transferor) court.
  • When the case is filed in an improper venue, or filed in a venue in defiance of a forum selection clause, the law of the transferee court (that is, the court to which the case is transferred) will apply.
29
Q

Restrictions on Choice of Law

A
  • Constitutional: imposes a limit only if a state’s law is chosen that has no significant contact with and/or legitimate interest in the
    litigation
  • Statutory: If the forum state has a statute that directs a choice of law, then the forum court should apply that statute instead of the usual choice of law approach.
30
Q

Common example of statutory restriction on choice of laws

A

Borrowing statute -> which requires the court to apply the statute of limitation of another state regardless of the choice of law approach that the state uses.

31
Q

The main analytical approaches to choice of law;

A

(1) the vested rights approach of the First Restatement
(2) the most significant relationship approach of the Second Restatement, and
(3) the interest analysis (governmental interest) approach

32
Q

Vested Rights Approach of the First Restatement

A

In the vested rights approach (the traditional approach), the following three analytical steps are taken: (1) characterizing the area of substantive law, (2) determining the particular choice of law rule, and (3) localizing the rule to be applied.

33
Q

Under the vested Rights Approach of the First Restatement the forum will generally apply its own law in _____

A

characterizing an issue (even if the state where the issue arose would apply a different characterization).

34
Q

Most Significant Relationship Approach of the Second Restatement

A
  • The most significant relationship approach seeks to identify the state having the most significant relationship with respect to the issue at hand and then apply that state’s law on that issue.
  • To do this, you consider the connecting facts in a given case and whether the policy-oriented principles should be considered.
35
Q

Interest Analysis (Governmental Interest) approach

A
  • In the interest analysis approach, you start from the assumption that the forum will apply its own law.
  • Then, you consider whether the forum has any interest in the litigation; if not, it is a “false conflict” situation and the forum will apply the law of the second state.
  • A question arises when both the forum and the second state have interests; this is a “true conflict” situation = if forum is interested apply forum law
36
Q

Basic paragraphs to a choice of law answer:

A
  • In paragraph 1, you state the issue and identify the choice of law approach.
  • In paragraph 2, you describe the choice of law approach.
  • In paragraph 3, you apply the choice of law approach.
    –> Important: This conclusion should include both the governing law and the result.)
37
Q

APPROACH #2: INTEREST ANALYSIS

If a false conflict has arisen, you apply the law of _____. If a true conflict has arisen and the forum state is interested, you apply ____

A

the interested state; forum law.

38
Q

APPLICATIONS TO SPECIFIC SUBSTANTIVE AREAS -> These specific areas will cover vesting rules under the _____.

_____, however, is not sensitive to the substantive area at issue.

A

First Restatement approach and connecting facts/policy principles under the Second Restatement approach

Interest analysis

39
Q

Under the First Restatement approach, the same vesting rule is generally applied to ____.

Under the Second Restatement and interest analysis approaches, however, each issue may be ____

A

the entire claim

analyzed separately.

40
Q

Torts: First Restatement Vesting Rule

A

The governing law is the law where the injury occurred.

41
Q

Torts: Second Restatement Considerations

A
  • Factual Connections: the place of (1) of injury; (2) of the conduct causing injury; (3) where the parties are at home; and (4) where the relationship, if any, is centered.
  • Policy principles: (1) the relevant policies of the forum state
    and (2) the relevant policies of other connected states.
42
Q

For torts issues for all three approaches, the governing law will almost always be the law of the place of injury.

But exceptions arise occasionally, particularly under the two modern approaches (interest analysis and
most significant relationship). These exceptions typically kick in when two conditions are present:

A
  • The rule at issue is a loss distribution rule (such as loss limitations, vicarious liability rules, and rules eliminating liability like immunity rules); and
  • The parties share a common domicile.
43
Q

Choice of Law Provision in a contract (definition and enforceability)

A
  • A choice of law provision allows the parties to select the law that will apply to their contract.
  • Rule: A choice of law provision will be enforced if it is valid and express.
44
Q

Impact of Choice of Law Provision

A
  • If the choice of law provision is enforced, the provision displaces the choice of law analysis that the court would otherwise perform.
  • Conversely, if the choice of law provision is rejected, the court should then conduct a choice of law analysis.
    –> If in doubt on the bar exam, find the provision invalid.
45
Q

Two reasons to find a choice of law invalid are:

A
  • The law selected has no reasonable relationship to the contract.
  • The provision was included without true mutual consent.
46
Q

Contracts: First Restatement Vesting Rules

A
  • Rule #1: If the case is about formation, you apply the law of the place of contracting.
    –> Examples of formation issues include: (1) capacity; (2) contractual formalities; and (3) consideration.
  • Rule #2: If the case is about performance, you apply the law of the place of performance.
    –> Examples of performance issues include (1) the time, place, and manner of performance; and (2) excuses for nonperformance.
47
Q

Contracts: Second Restatement Considerations

A
  • Factual considerations include: (1) the place of contracting; (2) the place of negotiation; (3) the place of performance; and (4) the place where the parties are at home.
  • Policy principles include: (1) the relevant policies of the forum state; (2) the relevant policies of other connected states; and (3) the reasonable expectations of the parties.
48
Q

____- is one area where all approaches essentially continue to apply the same rules

A

Property

49
Q

Immovable (Real) Property

A

Apply the law of the situs.

50
Q

Movable (Personal) Property

A
  • Rule #1: If the case involves an inter vivos transaction, you apply the law of the situs at the time of transaction.
  • Rule #2: If the case involves a matter relating to inheritance, you apply the law of the decedent’s domicile at the date of death.
51
Q

If a marriage is valid where performed, it will be ____

A

recognized as valid everywhere.

52
Q

Exception to recognition of marriage

A
  • When domiciliaries of one state temporarily relocate to another state to enter into a marriage that violates a prohibitory rule in their home state, the state of domicile will not recognize the marriage.
  • Prohibitory rules are rules that express a strong public policy regarding marriage, such as rules against incest, polygamy, and marriage under a minimum age.
  • By contrast, directory rules are
    administrative in nature, such as rules requiring a marriage license, parental consent, and a certificate of a blood test.
53
Q

The forum will apply its own ____.

A

divorce laws

-> The rationale is that to acquire jurisdiction, at least one of the parties must be domiciled in the state. Therefore, a state has an interest in applying its own law

54
Q

Child’s Status (Legitimacy Rules)

A
  • Rule #1: Legitimacy of a child is governed by the law of the mother’s domicile at the time of the child’s birth.
  • Rule #2: The validity of subsequent acts of legitimation concerning paternity are governed by the law of the father’s domicile
55
Q

DEFENSES TO CHOICE OF LAW (high level)

A
  • Public Policy
  • Procedural issues
56
Q

A forum court will not apply a law that is against its own ____. This rule appears in _____

A

fundamental public policy

both Restatements, but as a practical matter it is most applicable to the First Restatement.

57
Q

Regardless of the outcome of the choice of law analysis, the forum court will always apply ______

A

its own procedural rules.

58
Q

The general rule is that statutes of limitations have been viewed as ____

A

procedural (with exceptions)

59
Q

Exception to SOL’s being procedural for choice of law:

A
  • Exception #1: Borrowing Statutes: Borrowing statutes direct a court to look at both the forum limitations period and the foreign limitations period (in cases where foreign law governs under a normal choice of law analysis) and then to typically apply the shorter period.
  • Exception #2: Limitations that Condition a Substantive Right: If the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, then you apply the entire statute.
60
Q

DOMICILE BY CHOICE: Rules

A

An individual with domicile capacity acquires a domicile when
two conditions are satisfied: (1) physical presence in the new domicile; and (2) an intent to remain permanently (or indefinitely) in the new domicile.

61
Q

DOMICILE BY OPERATION OF LAW

A

An individual who lacks domicile capacity is assigned one by law.
- Applies to children and incompetents

62
Q

Domicile of children

A
  • Rule #1: Newborns are assigned the domicile of their parents.
  • Rule #2: In cases of divorce, children are assigned the domicile of their custodial parent.
63
Q

Domicile of incompetents

A
  • Rule #1: An individual who is mentally incompetent is assigned the domicile of their parents.
  • Rule #2: If an individual becomes incompetent after acquiring a domicile by choice, they retain the chosen domicile.

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