Conflict of Laws Flashcards
What are the three types of approaches to addressing conflict of laws questions?
The first restatement approach (bright-line), the “interest analysis” approach, and the second restatement (mash-up) approach
What are four considerations/exceptions to application of the first restatement (bright-line) approaches to conflict of laws questions?
RADS: Renvoi: (“send back”) – both states say “we defer to the other state”… Renvoi says that in that case, the forum law wins! Area of Substantive Law: when the court has to decide if it’s a contract or a tort… Dépeçage – (“cutting up”) courts will apply issues separately… different jurisdiction laws for the same matter Substance Versus Procedure: procedural issues applied by forum law even if foreign law is applying substantively! (SOL are procedural… so you apply the forum law SOL)
Under the first restatement approach to conflict of laws, how is choice of law for torts determined?
Torts – apply the law of the state where the last event creating liability occurred (e.g. where the accident occurred, even if product manufactured elsewhere)
Under the first restatement approach to conflict of laws, how is choice of law for contracts determined?
Contracts – questions of K formation: apply law of state where K was formed. Issues of K performance: apply the law where performance was to be rendered.
Under the first restatement approach to conflict of laws, how is choice of law for property determined?
where the property is located (real property); personal property… where the transaction occurred
How would a state with the “interest analysis” approach to addressing conflict of laws proceed in analyzing a choice of law question?
CUT: Contact with the case (which state has the most bonafide interest), Unprovided-for or “no interest” (neither state has an interest in application of its law), True Conflict (both states want their law applied) — usually the forum state’s law gets applied!
How does the “interest analysis” approach to conflict of laws treat questions of substance versus procedure?
This approach makes no distinction!
How does the first restatement approach to conflict of laws treat questions of substance versus procedure?
Questions of procedure (including SOL) are governed by forum law!
How does the second restatement approach to conflict of laws treat questions of substance versus procedure?
Questions of procedure (including SOL) are governed by forum law! Exception if application of a shorter SOL would be “unreasonable.”
What are the “general factors” to consider under the second restatement approach to conflict of laws?
FINE BUD: Forum’s Policies, Interested States, Needs of System, Expectations of the Parties (esp for K actions), Basic Field of Law’s policies, Uniformity, Determination (and application) ease
How does the second restatement approach to conflict of laws treat torts actions differently and how will they be analyzed?
(CRIL): Conduct Causing Injury, Relationship among Parties, Injury Suffered, Location of Parties
How does the second restatement approach to conflict of laws treat contracts actions differently and how will they be analyzed?
(SOPP): Subject Matter, Offer – Acceptance Location, Parties Place, Performance Place
On a SOL question, how would the Uniform Conflict of Laws Limitations Act apply?
Says if a claim is based on state X’s substantive law, then State X’s SOL applies… note that the UCLLA is NOT popular
How is choice of law determined in a case involving intestate succession?
It is governed by law of the state in which real property is located. For personal property it is governed by the law of the decedent’s last domicile.
How is choice of law determined in cases involving the validity of a marriage?
If the validity is challenged, court will apply the law of the state where marriage took place unless to do so “seriously violates the public policy of the forum.”
