Conflict of Laws

Question 1

What is the Rendering Jurisdiction?

Answer 1

The court/jurisdiction that rendered the judgment for which enforcement is now being sought.

Question 2

What is a Recognizing Jurisdiction?

Answer 2

The court/jurisdiction where enforcement of a judgment from another jurisdiction is being sought.

Question 3

What is the general analysis for determining Recognition of another jurisdiction’s judgment?

Answer 3

(1) Was the rendering jurisdiction a sister state or a foreign country?
(2) Is the judgment entitled to full faith and credit (and are there defenses) or comity (for the foreign country)?

Question 4

What result when a sister state ruling is not on the merits?

Answer 4

The judgment does not trigger the requirements of full faith and credit (including that it doesn’t bar the case being brought and litigated in another jurisdiction).

Question 5

What result for sister state FF&C when a case is dismissed for a failure to state a claim?

Answer 5

Sometimes it’s with prejudice and on the merits (which will prevent re-litigation elsewhere). Need to see how the court’s order is structured.

Question 6

Is a default judgment considered to be “on the merits?”

Answer 6

Yes–triggers full faith and credit.

Question 7

What are the requirements for Full Faith & Credit?

Answer 7

(1) Jurisdiction (both PJ and SMJ)
(2) Judgment must have been on the merits
(3) Judgment must be final.

Question 8

Are consent judgments “on the merits?”

Answer 8

Yes–triggers full faith and credit.

Question 9

What result for divorce decree payments in terms of FF&C finality?

Answer 9

• Past due payments are final
• Future payments are not final

Question 10

Whose rules are used for a rendered verdict once the requirements for Full Faith & Credit are satisfied?

Answer 10

The rendering jurisdiction’s rules.

Question 11

What are the defenses to FF&C?

Answer 11

• Penal judgments are not enforced (except for tax judgments)
• Judgments based on extrinsic fraud are not enforced

Question 12

Is a defense against FFC based on penal judgments valid?

Answer 12

Yes. A penal judgment is a judgment that punishes offenses against the public (usually means that the state is suing).
- Punitive damages don’t make the case penal.

Question 13

Is a defense against FFC based on judgments based on fraud valid?

Answer 13

Yes. Judgments based on fraud that could not be corrected during the proceedings (EX: judge being bribed).

Question 14

Is a defense against FFC based on public policy valid?

Answer 14

No. States need to recognize each others’ policies.

Question 15

Is a defense against FFC based on misapplication of law valid?

Answer 15

No. They need to appeal in their own state.

Question 16

What is recognition of foreign judgments / comity?

Answer 16

Under principles of comity, a recognizing court will 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 (EX: is the foreign judgment final? Was the foreign judgment on the merits?).
But there are two additional questions that a recognizing court may ask follow: (1) Did the Foreign Court Have Jurisdiction? (The foreign court must have had jurisdiction. The court has greater leeway to assess jurisdiction than in the full faith and credit context); (2) Were the Procedures in the Foreign Court Fair? (The American court also will assess whether the procedures in the foreign court were fair.)

Question 17

When does a choice of law inquiry arise?

Answer 17

(1) The lawsuit involves factual connections with multiple states; and (2) The multiple states will have different laws leading to different results.

Question 18

When there’s a choice of law issue, which state’s law will govern (broad answer)?

Answer 18

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).
- Need to know forum state’s choice of law rules.

Question 19

What choice of law rules does a federal court apply in a diversity case?

Answer 19

A federal court sitting in diversity applies the choice of law approach of the state in which it sits.
- Based in the erie doctrine.

Question 20

What result for choice of law rules when a federal diversity court case is transferred away to another venue?

Answer 20

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.

Question 21

What basic restrictions apply to a forum court’s choice of law?

Answer 21

• Constitutional: The Constitution imposes a limit only if a state’s law is chosen that has no significant contact with or legitimate interest in the litigation (weak).
• 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. A common example is 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.

Question 22

What is the Vested Rights Approach?

Answer 22

In the Vested Rights Approach (1st Restatement), 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.
- Note: The forum will generally apply its own law in characterizing an issue, even if the state where the issue arose would apply a different characterization.
- Caring a lot about state borders. Most prominent 100 years ago.

Question 23

What is the Most Significant Relationship Approach?

Answer 23

The Most Significant Relationship Approach (2nd Restatement) 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.

Question 24

What is the structure of an answer for a Vested Rights Approach answer?

Answer 24

(State the Choice of Law issue and the law to be used (“The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the [fill in applicable choice of law approach].”))
4 Sentences:
- Categorize substantive area of the law (“this is a torts case”)
- State the applicable vesting rule (“Thus, the applicable vesting rule is the place of injury”)
- Apply the vesting rule to determine the applicable law (“Here, the injury occurred in State A, so State A law applies”)
- Apply the governing law to determine the result (“Under State A law, a non-paying passenger cannot recover against the driver, and so the claim is barred”)

Question 25

What is the structure of an answer for an Interest Analysis Approach answer?

Answer 25

(State the Choice of Law issue and the law to be used (“The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the [fill in applicable choice of law approach].”))
- Set up the analysis (“Under this approach the court will consider which states have a legitimate interest in the outcome of the litigation. The forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of another interested state.”)
- Discuss which states have legitimate interests
- Characterize the type of conflict–false or true
- Choose the governing law based on the type of conflict
- Apply the governing law to determine the result

Question 26

What is a false conflict?

Answer 26

A false conflict arises when only one state has a legitimate interest.

Question 27

What is a true conflict?

Answer 27

A true conflict arises when two or more states have a legitimate interest.

Question 28

What law applies when there is a false conflict vs a true conflict?

Answer 28

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

Question 29

What is the structure of an answer for a Most Significant Relationship Approach answer?

Answer 29

(State the Choice of Law issue and the law to be used (“The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the [fill in applicable choice of law approach].”))
- Set up analysis (“Under this approach the court will apply the law of the state which is MOST SIGNIFICANTLY RELATED to the outcome of the litigation. To determine this, the court will consider connecting facts and policy principles.”)
- Discuss connecting facts (“In this case, the factual connections are split. The accident occurred in Michigan, and the injury was sustained there. But both the plaintiff and the defendant are from Illinois.”)
- Discuss policy principles (“As a matter of policy, Illinois seems to have the greater interest because the law at issue is a loss distribution rule and both parties share an Illinois domicile.”)
- Choose governing law based on most significant relationship (“As a result, Illinois appears to have the most significant relationship to the dispute and its law should apply.”)
- Apply the governing law to determine result (“Under Illinois law, the plaintiff may recover.”)

Question 30

When will the law of the place of injury not be applied?

Answer 30

In the case of the 2nd Restatement interest analysis, when the rule at issue is a loss distribution rule (Loss limitations; Vicarious liability rules; Immunity rules eliminating liability) AND the parties share a common domicile, the common domicile is used.

Question 31

What result for Choice of Law when there is a Choice of Law provision in a contract?

Answer 31

A choice of law provision allows the parties to select the law that will apply to their contract. A choice of law provision will be enforced if it is valid and express.
- This displaces the choice of law analysis that would otherwise occur. However, if it’s valid, the choice of law analysis would still be needed.

Question 32

When will a choice of law provision be invalid?

Answer 32

The two reasons to find a choice of law invalid are: (1) The law selected has no reasonable relationship to the contract (EX: using law of a state that has no connection to the property or parties of a transaction); and (2) The provision was included without true mutual consent (EX: misrepresented the content of the chosen law).

Question 33

What are the Vesting Rules for contracts?

Answer 33

• 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).

Question 34

What are the Second Restatement considerations for a choice of law analysis in a contract dispute?

Answer 34

• 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.

Question 35

What are the choice of law rules for property?

Answer 35

• For immovable (real) property, apply the law of the situs.
• For movable (personal) property, if the case involves an inter vivos transaction, you apply the law of the situs at the time of transaction.
• For movable (personal) property, if the case involves a matter relating to inheritance, you apply the law of the decedent’s domicile at the date of death.

Question 36

What choice of law rule(s) apply for marriage validity?

Answer 36

If a marriage is valid where performed, it will be recognized as valid everywhere.
- EXCEPTION: 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.

Question 37

What choice of law rule(s) apply for divorce?

Answer 37

The forum will apply its own 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.

Question 38

What choice of law rule(s) apply for determining a child’s legitimacy status?

Answer 38

• 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.

Question 39

What is involved in a public policy defense to choice of law?

Answer 39

A forum court will not apply a law that is against its own fundamental public policy. This rule appears in both Restatements, but as a practical matter it is most applicable to the First Restatement.
- Caveat: As a reminder, this rule does not apply to recognition of judgments!

Question 40

What is involved in a procedural rules defense to choice of law?

Answer 40

Regardless of the outcome of the choice of law analysis, the forum court will always apply its own procedural rules.

Question 41

How are statutes of limitations analyzed when there is a choice of law issue?

Answer 41

The general rule is that, in state vs. state contests, statutes of limitations have been viewed as procedural (forum state applies its own rules). Erie still applies (in federal civil procedure, statutes of limitations are considered substantive).
- 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 (if a statute creates both a right to recover and a limitation period, then you use that entire statute).

Question 42

What is the rule for domicile in a choice of laws issue?

Answer 42

Domicile by Choice: 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.

Question 43

What result for domicile when an individual lacks domiciliary capacity?

Answer 43

An individual who lacks domicile capacity is assigned one by law.
- Children: (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.
- Incompetents: (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.