Conflict of Laws Flashcards
Service of Process
Service of Process gives the parties to a lawsuit appropriate notice of the initiation of legal action
While email is not an authorized manner of services under the FRCP, as long as service by email is reasonably calculated to inform and provide adequate notice of the pendency of a lawsuit, such notice does not violate due process and is consistent with the United States constitution.
Rule 4 Civil Procedure
Rule 4 of the FRCP permits service of process on a foreign corporation outside of the United States by any means directed by the court so long as it is not prohibited by international agreement
Most significant relationship, torts application
Under the 2nd restatement, the court will apply the law of the jurisdiction that has the “most significant relationship” to the torts occurrence and the parties.
Courts consider the place of the injury, the place where the conduct causing the injury occurred, the domicile, residence, nationality, place of incorporation, and place of business of the parties, and the place where the relationship, if any, between the parties is centered.
Courts will also consider policy-oriented principles.
Where there is a conflict between local and foreign jurisdictions, most courts will apply the local policies unless there is a strong reason not to do so.
Substance Versus Procedure
A federal district court exercising diversity jurisdiction must apply the substantive law of the state in which it sits, including choice of law rules.
Transfer Choice of law
Generally, following a transfer based on convenience, the transferee court must apply the same law to the case as would have been applied by the transferor court.
However, the court has held that when parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties settled expectations and will apply the law of the transfereee court.
Contracting Law - Choice of Law
contracting parties generally have the freedom of contract which means that where there was an express choice of governing law, it will be followed by the court.
This is the case unless there is no reasonable basis for the parties choice or the outcome is contrary to public policy
Validity of a Will - Choice of Law
under common law, the validity of a testator’s will is determined by the state where the testator was domiciled at the time of his death.
Under the uniform probate code, a will is valid if it complies either with the law of the state in which it was executed or with the law of the place where the testator was domiciled when he signed his will or when he died.
Decedent’s Estate - Choice of Law
Disposition of decedent’s real property is governed by the jurisdiction of where the land is located, i.e. the situs.
Disposition of decedent’s personal property is governed by the jurisdiction of the deceased’s domicile at the date of death.
Most Significant Relationship - Premarital Agreement
in determining the enforceability of the premarital agreement, most states will apply the second restatement approach where courts will apply the law of the jurisdiction that has the most significant relationship to the issue and the parties.
Courts consider the place of the premarital agreement and the marriage was entered, the domicile and residence of the parties, and the place where the relationship, if any, between the parties is centered.
Courts will also consider policy oriented principles. Other states apply the law of the state in which the premarital agreement was executed in determining enforceability.
Full Faith and Credit - Marriage
common law marriages are abolished in most states.
If validly formed under the laws of one state, a marriage will be regarded as valid in other states.
Child Custody Jurisdiction
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the most important jurisdictional test is determining the home state of the child.
Jurisdiction is established by showing where the child lived with a parent for at least six consecutive months; or a state that was the child’s home state within the last 6 months and despite the child’s absence from the state a parent continues to live.
Due Process - Service of Process
The due process clause guarantees litigants “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. .
restatement 2nd - most significant relationship test: Unfair competition and most signifcant relationship test - Tors
unfair competition is a tort claim governed by § 145 of the Restatement (Second) of Conflict of Laws (cmts. e & f (1971)). Section 145 states that “the rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.” Id. §
