Conflict of Laws Flashcards
Two distinct testing areas for conflicts
1) recognition of judgments
2) choice of law
Recognition of judgments question arises when:
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
Place where judgment was originally entered
rendering jurisdiction
Place where recognition is being sought
recognizing jurisdiction
Reasons for a party to seek recognition
P = to access enforcement mechanisms in the recognizing state
D = prevent a P from relitigating a claim or issue
Two-part analysis for recognition of judgment questions
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)?
Sister state judgments
1) are requirements of full faith and credit satisfied?
2) are there any valid defenses?
If 1) yes and 2) no = recognition is required
Requirements for full faith and credit
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
FFC requirements are evaluated using the law of the…
rendering state
- BUT law of the the ENFORCING state governs method of enforcement
Valid defenses to FFC
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
Invalid defenses to FFC
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
Foreign country judgments
Is the foreign judgment entitled to comity?
Comity
A recognizing court will exercise discretion to decided whether the foreign judgment should be recognized
Considerations for determining comity
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
A choice of law question arises when:
1) lawsuit involves factual connections with multiple states and
2) the multiple states will have different laws leading to different results
Core question and answer in choice of law problem
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
Restrictions on choice of law
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
Three analytical approaches to choice of law
1) vested rights approach (First Restatement)
2) most significant relationship approach (Second Restatement)
3) interest analysis approach (government interest)
Vested Rights Approach
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
Most significant relationship approach
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
Interest analysis
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
Basic structure of a choice of law answer
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
Rationale for Vested rights approach
need to apply the choice of law of the state where the claim occurred
Vested right approach Para 2
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
Structure of Para 3 for vesting rights approach
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
Interest analysis Para 2
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.
Structure of para 3 for interest analysis
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
Most significant relationship Para 2
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.
Structure of para 3 for most significant relationship
1) discuss connecting facts
2) discuss policy principles
3) choose governing law based on most significant relationship
4) apply governing law to determine result
First Restatement Vesting rule for torts
Governing law = where the injury occurred
Second restatement for torts
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
Usual outcomes for torts (and exceptions)
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
Choice of law for contracts - threshold question
Is there an enforceable choice of law provision
A choice of law provision will be enforced if it is valid and express
Impact of a choice of law provision in a contract
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
Reasons to find a choice of law provision invalid
1) law selected has no reasonable relationship to the contract
2) provision was included without true mutual consent
First Restatement vesting rules for contracts
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
Second restatement and contracts
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
Property law and choice of law approaches
All approaches essentially apply the same rules
Choice of law and real property
Apply the law of the situs
- apply law where RP is located
Situs = location of property or an item for legal purposes
Choice of law and personal property
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
Marriage and choice of law
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
Choice of law and divorce
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
Choice of law and child status (legitimacy rules)
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
“Defenses” to choice of law
Considerations/reasons to deviate from result in choice of law analysis
1) Public policy
2) procedural rules
Public policy deviation rule
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!
Deviation for procedural rules
Regardless of the outcome of the choice of law analysis, the forum court will always apply its own procedural rules
Statute of limitations and choice of law
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
Domicile and choice of law approaches
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
Domicile by choice
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
Domicile by operation of law
An individual who lacks domicile capacity is assigned one by law
Domicile by operation of law for children
1) Newborns are assigned the domicile of their parents
2) in cases of divorce, children are assigned the domicile of their custodial parent
Domicile by operation of law for incompetency
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
