Conflict of laws Flashcards
There are two important but distinct testing areas for conflicts:
- Recognition of judgments; and
- Choice of law.
To Recognize a judgment the court must verify:
Full faith and credit satisfied? JOF Art. IV sec. 1 Constitution
a. Jurisdiction: The rendering state must have had jurisdiction over the parties (that is, personal jurisdiction) and jurisdiction over the subject matter. Exception: When the issue of jurisdiction has been fully and fairly litigated, the jurisdictional determination is itself entitled to full faith and credit.
b. On the merits: The judgment entered by the rendering state must have been on the merits. Note: A default judgment treats all factual contentions as admitted and is therefore on the merits for full faith and credit and recog¬nition of judgment purposes.
c. Finality: The judgment entered by the rendering court must be a final judgment. The most common application here is a judgment on appeal in the rendering jurisdiction, which is not final.
Foreign judgments recognized if:
add principle
Foreign judgments: the source to recognize must be comity or treaty. Rule: Under principles of comity, a recognizing court will exercise discre¬tion 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.
A choice of law question may arise when two conditions are satisfied:
The lawsuit involves factual connections with multiple states; and The multiple states will have different laws leading to different results.
The core question is: “Which state’s law will govern?” The core answer is:
The governing law is the law selected by the forum court according to its choice of law approach (assuming no appli¬cable constitutional or statutory restrictions).
Choice of law – Analytical Approach: There are three main analytical approaches:
- Vested rights
- Most significant relationship approach
- Interest analysis
Explain 1. Vested rights approach
the following three analytical steps are taken: (1) characterizing the area of substan-tive law, (2) determining the particular choice of law rule, and (3) local¬izing the rule to be applied. Example: ‘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.”
Most significate relationship approach
b. Most significate relationship approach “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.”
Interest analysis (governmental interest) approach
c. Interest analysis (governmental interest): “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.”
How to determine a court has the most significant interest in a tort cases:
GRID C to determine which state has the most significant interests.
G – GOVERNMENT interest and the policy for its law;
R – The state, if any, where the parties RELATIONSHIP is centered;
I – The state where the INJURY occurred;
D – DOMICLIES of the contracting parties
C – State where the CONDUCT causing the injury occurred.
buzzwords for vested rights, relationship approach, interest analysis
vested - That rule is selected according to the relevant substantive area of law.”
relationship - most significantly related to the outcome, considering connecting facts and policy principles
interest- court will apply its own law as long it has legitimate interest in the outcome of litigation.
Marital Property in divorce
A court with personal jurisdiction over both spouses may divide their property including property outside the forum state. A court with personal jurisdiction over only one spouse can affect only property located in the forum state.
Real property issue. which law state to use?
Use law of the situs. A court cannot determine out-of-state property rights or rights to support unless it has personal jurisdiction over both parties.
Tort claim. which state law to use?
- 1st Vesting rule: The governing law is the law where the injury occurred.
- 2nd restatement: relationship: Second Restatement considerations include the place: (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 include the relevant policies of the forum state.
Contract. which state law to use? if no choice of law clause.
Vesting approach: formation issue? apply the place of execution of K. Performance issue: apply the law where the K was performed.
Second Restatement: think about connecting facts where: a place of contracting, negotiation, place performance and where the parties home and Policy principles: policy of forum state, policies connected, the expectation of parties.
Statute of limitations
statute of limitations is viewed as substantial law (Erie doctrine)- it will apply the rule of the state where fed court sits. However, when it is state vs. state, this rule is procedural; the state will apply its own SL rules.
Domicile rule
explain
Rule: 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.
Foreign corporation - how to serve?
- Service of process in a foreign corporation can be made following the service of process specified in the treaty or international agreement between the countries, or if no treaty:
o In accordance with foreign country laws
o As foreign country guidance in response to a letter for guidance
o Clerk mail process to D with signed receipt request
o Any other nonprohibited means or as court may order
