Conflict of Laws

Question 1

Two distinct testing areas for conflicts

Answer 1

1) recognition of judgments
2) choice of law

Question 2

Recognition of judgments question arises when:

Answer 2

1) a judgment has been entered by a court in one jurisdiction and
2) a party is seeking to have that judgment recognized by a court in a different jurisdiction

Question 3

Place where judgment was originally entered

Answer 3

rendering jurisdiction

Question 4

Place where recognition is being sought

Answer 4

recognizing jurisdiction

Question 5

Reasons for a party to seek recognition

Answer 5

P = to access enforcement mechanisms in the recognizing state

D = prevent a P from relitigating a claim or issue

Question 6

Two-part analysis for recognition of judgment questions

Answer 6

1) Was the rendering jurisdiction a sister state or foreign country?
- this will be provided in the facts

2) is the judgment entitled to full faith and credit (sister state) or comity (foreign country)?

Question 7

Sister state judgments

Answer 7

1) are requirements of full faith and credit satisfied?
2) are there any valid defenses?

If 1) yes and 2) no = recognition is required

Question 8

Requirements for full faith and credit

Answer 8

1) jurisdiction = rendering state must have had both SMJ and PJ jx
- exception = when issue of jx has been fully and fairly litigated –> jx determination is itself entitled to FFC

2) on the merits = judgment entered by rendering state must have been on the merits
- includes default judgment and consent judgment entered after settlement

3) finality = judgment entered by rendering court must be final judgment
- NOT a judgment on appeal

Question 9

FFC requirements are evaluated using the law of the…

Answer 9

rendering state
- BUT law of the the ENFORCING state governs method of enforcement

Question 10

Valid defenses to FFC

Answer 10

Not entitled to FFC:

1) penal judgments = punish an offense against the public
- exception = final tax judgment entered by one state will be enforced by another state

2) extrinsic fraud = fraud that could not be corrected during the regular course of proceedings leading to the judgment
- e.g., judge was the subject of a bribe in the first proceeding

Question 11

Invalid defenses to FFC

Answer 11

Entitled to FFC:

1) public policy = states are not permitted to decide which judgments they like or don’t like based on their own public policy

2) mistake or misapplication of the law = mistakes must be challenged through an appeal in the rendering state

Question 12

Foreign country judgments

Answer 12

Is the foreign judgment entitled to comity?

Question 13

Comity

Answer 13

A recognizing court will exercise discretion to decided whether the foreign judgment should be recognized

Question 14

Considerations for determining comity

Answer 14

1) was foreign judgment final?
2) was foreign judgment on the merits?
3) did the foreign court have jurisdiction?
- more discretionary that FFC analysis
- American court can take a fresh look at the jx issue and assess based on American principles
4) were the foreign court procedures fair?
- court can apply American principles in determining fairness

Question 15

A choice of law question arises when:

Answer 15

1) lawsuit involves factual connections with multiple states and
2) the multiple states will have different laws leading to different results

Question 16

Core question and answer in choice of law problem

Answer 16

Q = which state’s law will govern
A = governing law is the law selected by the forum court according to its choice of law approach
- exceptions:
1) diversity cases in federal court = applies choice of law approach of state in which it sits
2) transferred diversity cases = choice of law of transferor court unless venue was improper or FSC was violated

Question 17

Restrictions on choice of law

Answer 17

1) constitutional restriction = Constitution imposes a limit only if a state’s law is chosen that has so significant contact with and/or legitimate interest in litigation

2) statutory restriction = if forum state has a statute that directs a choice of law, forum court should apply the statute instead of the usual choice of law approach
- e.g., borrowing statute

Question 18

Three analytical approaches to choice of law

Answer 18

1) vested rights approach (First Restatement)
2) most significant relationship approach (Second Restatement)
3) interest analysis approach (government interest)

Question 19

Vested Rights Approach

Answer 19

First Restatement = traditional approach

1) characterize the area of substantive law
- forum applies its own law to characterize the issue
2) determine the particular choice of law rule
3) localize the rule to be applied

Question 20

Most significant relationship approach

Answer 20

Second Restatement

1) consider the connecting facts –> the specific contacts with each jurisdiction
2) consider the policy-oriented principles:
- needs of interstate systems
- relevant policies of forum
- policies and interests of other jurisdictions
- expectations of parties
- basic policies underlying substantive law
- predictability and uniformity of result
- ease of determination of foreign law

Question 21

Interest analysis

Answer 21

1) Assume the forum will apply its own law, unless requested to apply another
2) if it is requested to apply another state’s law, check for false conflict (forum has no interest)
3) if false conflict, apply the law of interested state
4) if true conflict, the forum reconsiders its policies
5) If forum has no interest in applying its own law, it should dismiss the case if FNC is available; if not, it may apply interested state’s law or law of the state that most closely resembles its own law
6) if no interested state, most courts apply law of forum

Question 22

Basic structure of a choice of law answer

Answer 22

Para 1 = state issue and identify the choice of law approach

Para 2 = describe the choice of law approach being used

Para 3 = apply the choice of law approach being used

Question 23

Rationale for Vested rights approach

Answer 23

need to apply the choice of law of the state where the claim occurred

Question 24

Vested right approach Para 2

Answer 24

Under this approach the court will apply the law of that state mandated by the applicable vesting rule. That rule is selected according to the relevant substantive area of law

Question 25

Structure of Para 3 for vesting rights approach

Answer 25

Apply the choice of law to the facts:
1) categorize substantive area of law
2) state applicable vesting rule
3) apply vesting rule to determine governing law
4) apply governing law to determine the result

Question 26

Interest analysis Para 2

Answer 26

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.

Question 27

Structure of para 3 for interest analysis

Answer 27

1) discuss which states have legitimate interests
2) characterize the type of conflict
- false conflict = only one state has a legitimate interest
- true conflict = two or more states have a legitimate interest
3) choose governing law based on type of conflict
- false conflict = apply law of interested state
- true conflict = if forum state is interested, apply forum law
4) apply governing law to determine result

Question 28

Most significant relationship Para 2

Answer 28

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.

Question 29

Structure of para 3 for most significant relationship

Answer 29

1) discuss connecting facts
2) discuss policy principles
3) choose governing law based on most significant relationship
4) apply governing law to determine result

Question 30

First Restatement Vesting rule for torts

Answer 30

Governing law = where the injury occurred

Question 31

Second restatement for torts

Answer 31

Factual connections:
1) place of injury
2) place of conduct causing injury
3) where parties are at home
4) where the relationship, if any, is centered

Policy principles:
1) relevant policies of the forum state
2) relevant policies of other connected states

Question 32

Usual outcomes for torts (and exceptions)

Answer 32

All three approaches = governing law will almost always be the law of the place of injury

Exceptions:
1) rule at issue is a loss distribution rule = primarily or exclusively directed at distribution of losses
- damage caps
- vicarious liability rule
- immunity rules eliminating liability
AND
2) parties share a common domicile

If both conditions are present, apply the law of the common domicile

Question 33

Choice of law for contracts - threshold question

Answer 33

Is there an enforceable choice of law provision

A choice of law provision will be enforced if it is valid and express

Question 34

Impact of a choice of law provision in a contract

Answer 34

If enforced, the provision displaces the choice of law analysis that the court would otherwise perform

If found to be invalid, the court should conduct a choice of law analysis

Question 35

Reasons to find a choice of law provision invalid

Answer 35

1) law selected has no reasonable relationship to the contract
2) provision was included without true mutual consent

Question 36

First Restatement vesting rules for contracts

Answer 36

1) if the case is about FORMATION, apply the law of the place of contracting

2) if the case is about PERFORMANCE, apply the law of the place of performance

Question 37

Second restatement and contracts

Answer 37

Factual considerations:
1) place of contracting
2) place of negotiation
3) place of performance
4) place where parties are at home

Policy principles:
1) relevant policies of forum state
2) relevant policies of other connected states
3) reasonable expectations of the parties
- often pushes toward enforcing K because parties expect such

Question 38

Property law and choice of law approaches

Answer 38

All approaches essentially apply the same rules

Question 39

Choice of law and real property

Answer 39

Apply the law of the situs
- apply law where RP is located

Situs = location of property or an item for legal purposes

Question 40

Choice of law and personal property

Answer 40

1) If case involves an inter vivos transaction, apply law of situs at the time the time of the transaction

2) If the case involves a matter relating to inheritance, apply the law of the decedent’s domicile at the date of death

Question 41

Marriage and choice of law

Answer 41

If a marriage is valid where performed, it will be recognized as valid everywhere
- exception = temporary move to avoid prohibitory public policy rule of the home state will not be recognized, as long as the prohibitory rule is constitutional

Question 42

Choice of law and divorce

Answer 42

Forum will apply its own divorce laws
- for court to have jx, at least one of the parties must be domiciled in the state, so the state has an interest in applying its own law

Question 43

Choice of law and child status (legitimacy rules)

Answer 43

1) Legitimacy of a child is governed by the law of the mother’s domicile at the time of child’s birth

2) validity of subsequent acts of legitimation concerning paternity are governed by the law of the father’s domicile

Question 44

“Defenses” to choice of law

Answer 44

Considerations/reasons to deviate from result in choice of law analysis

1) Public policy
2) procedural rules

Question 45

Public policy deviation rule

Answer 45

A forum court will not apply a law that is against its own fundamental public policy
- both Restatements, but most applicable to First Restatement
- does NOT apply to recognition of judgments!

Question 46

Deviation for procedural rules

Answer 46

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

Question 47

Statute of limitations and choice of law

Answer 47

SOL are always procedural for choice of law purposes

Exceptions:
1) borrowing statutes = direct a court to look at both the forum limitations period and foreign limitations period and then apply the shorter period

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, apply the entire statute, including any limitations the statute imposes

Question 48

Domicile and choice of law approaches

Answer 48

Where someone is domiciled can bring them within the scope of a state’s interest under the two modern choice of law approaches (Second Restatement and Interest Analysis)
- states tend to define the scope of their interest based on domicile

Question 49

Domicile by choice

Answer 49

An individual with domicile capacity acquires a domicile when there is:
1) physical presence in the new domicile AND
2) an intent to remain permanently or indefinitely in the new domicile

Question 50

Domicile by operation of law

Answer 50

An individual who lacks domicile capacity is assigned one by law

Question 51

Domicile by operation of law for children

Answer 51

1) Newborns are assigned the domicile of their parents
2) in cases of divorce, children are assigned the domicile of their custodial parent

Question 52

Domicile by operation of law for incompetency

Answer 52

1) Mentally incompetent person is assigned the domicile of their parents
2) Person who becomes mentally incompetent after acquiring a domicile by choice retains their chosen domicile