Conflict of Laws

Question 1

How do you determine the law to be applied in intestate succession of personal property?

Answer 1

Domicile of decedent.

Question 2

Which state gets estate taxes?

Answer 2

Domicile at death.

Question 3

Where is the SMJ for a divorce?

Answer 3

Domicile of individual getting a divorce.

Question 4

What is domicile of choice?

Answer 4

Legal capacity is needed to make a domicile of choice i.e. ability to fend for yourself. To establish domicile of choice, show:

1) physical presence in that state (length of time is immaterial) AND
2) intent to remain for the foreseeable future

Question 5

In domicile of choice, what if there is a conflict between words and intent?

Answer 5

Actions speak louder than words: what you do counts for more than what you say. This is the dominant approach.

Question 6

How many domiciles may a person have?

Answer 6

Only 1. If multiple residences, the primary one is considered the person’s domicile.
*BUT double taxation if two states each independently find they are the person’s state of domicile is fine.

Question 7

When does domicile change?

Answer 7

Once obtained, domicile of choice is kept until another one is acquired.

Question 8

What do we do with motives for going to another state to acquire domicile?

Answer 8

We do not care even if motives seem untoward. Care only about physical presence and intent to remain.

Question 9

What is domicile by operation of law?

Answer 9

If a person has no legal capacity (child, mental incompetent) to acquire a domicile of choice that person will be assigned one by operation of law.

Question 10

What are the three rules for domicile by operation of law?

Answer 10

1) Child or mental incompetent will have domicile of that person’s parents.
2) If parents divorced, domicile is that of the parent who has custody.
3) If person had a validly acquired domicile before becoming mentally incompetent, that person will retain the domicile of choice during the period of incompetency.

Question 11

What is the proper terminology of the two courts involved when there’s a question of recognition and enforcement of another court’s judgment?

Answer 11

State handing down the judgment is the rendering state; state called upon to recognize and enforce the judgment is the recognizing or forum state.

Question 12

When must a judgment of another state be entitled to full faith and credit?

Answer 12

1) Judgment meets the three full faith and credit requirements, and
2) No valid defenses.

Question 13

What are the three full faith and credit requirements?

Answer 13

1) Valid jurisdiction in the rendering court over both the parties and subject matter.
2) Judgment is a final judgment.
3) Judgment is on the merits.

Question 14

What is the one attack rule?

Answer 14

Validity of jurisdiction can be attacked only once either in the rendering court or in the recognizing court. If jur was fully and fairly litigated in the rendering court that determination is entitled to full faith and credit by the recognizing court even if it was wrong.

Question 15

What is a final judgment for full faith and credit purposes?

Answer 15

If a judgment is modifiable (future alimony, future child support), it isn’t a final judgment and gets no full faith and credit, but it will usually still be enforced under principles of comity. Judgments for amounts already accrued and in arrears are considered final judgments. Judgments on appeal aren’t final judgments unless the rendering state would allow enforcement of the judgment pending appeal.

Question 16

What are the two situations that are on the merits for full faith and credit purposes?

Answer 16

1) Default judgments
2) Consent judgements
* Why? Parties had opportunity to go to a judgment on merits.

Question 17

What is the controlling law on all three full faith and credit requirements?

Answer 17

Rendering state law.

Question 18

What are the two defenses that prevent a judgment from being given full faith and credit?

Answer 18

1) Judgment that is penal won’t be enforced i.e. if judgment rendered for offense against the public (govt wins) resulting in criminal sanctions or civil fine.
2) Extrinsic fraud i.e. fraud that could not have been coped with at the earlier trial. EX: bribing a judge.

Question 19

What are the other defenses that do not work in preventing a judgment from being given full faith and credit?

Answer 19

1) Judgment is based on a COA that violates forum’s public policy.
2) Mistakes by the judge in the earlier trial: remedy is appeal.
3) Inconsistent judgments: later judgment can be enforced even though it is inconsistent w/ an earlier valid one. SCOTUS Rule: enforce last judgment in time.

Question 20

When can foreign country judgments be enforced?

Answer 20

Two part comity test:

1) Jurisdiction must have been proper (fundamental fairness, minimum contacts)
2) Fair procedures must have been used in the foreign country proceeding
* To determine whether foreign judgment meets this test use the recognizing state’s law and ideas of DP.

Question 21

What are the special situations that arise in family law cases where there are special rules for SMJ and PJ?

Answer 21

1) Termination of marital status i.e. divorce
2) Property awards, such as alimony or child support
3) Child custody awards

Question 22

What does a valid divorce require?

Answer 22

SMJ, which requires one of the two spouses be domiciled in the state rendering the divorce.

Question 23

What are the three types of divorce?

Answer 23

1) Ex-parte divorce: where only one spouse is validly domiciled where divorce is granted.
2) Bi-lateral divorce: one spouse is validly domiciled where divorce is granted and both spouses subject to PJ.
3) Consent divorce: INVALID. Both spouses want out of the marriage and go together somewhere to get divorced. No domicile.

Question 24

What is the burden of proof for a person challenging a divorce?

Answer 24

The attacker bears the burden of proof and can introduce any relevant evidence whatever, even if evidence came into existence after the divorce was granted.

Question 25

Who may challenge the divorce?

Answer 25

Any interested person who is not estopped can attack a divorce decree for lack of SMJ.

Question 26

What are the four basic situations in which an interested person will be estopped from challenging a divorce?

Answer 26

1) Attacker was subject to PJ in earlier proceeding.
2) Attacker played a meaningful role in the granting of the divorce.
3) Attacker is in privity w/ a party to the divorce. This includes children.
4) A spouse who has remarried in reliance on the earlier divorce may not attack the divorce.

Question 27

In family law disputes, what court has jurisdiction over property awards?

Answer 27

A court granting alimony or child support must have personal jurisdiction over the spouse whose property rights are in issue.

Question 28

In family law disputes, what court has jurisdiction over child custody decrees?

Answer 28

Valid jurisdiction for determining child custody lies only in the child’s home state.

Question 29

What is the divisible divorce doctrine?

Answer 29

If a decree has some parts that are good and some that are bad, you keep the good and ignore the rest.

Question 30

What are the constitutional limitations on choice of law and what is the test to see if they are satisfied?

Answer 30

Due process + full faith and credit. Test: The state chosen must have a significant contact or contacts w/ the parties or the subject matter of the litigation which give it a legitimate interest in seeing how it is applied.

Question 31

Do we have to weigh interests of the states purporting to have significant interest?

Answer 31

No. As long as a state meets the test its law can be applied even if another state has a greater interest.

Question 32

What are the two situations that do not meet the constitutional test for due process and full faith and credit?

Answer 32

1) If after the event someone moves to a new state and that move creates the only contact w// that state, then it would be unconstitutional to apply that state’s law.
2) If the only contact w/ parties or litigation is that the suit is brought in a state, then it would be unconstitutional to apply that state’s law.

Question 33

What are the three choice of law approaches?

Answer 33

1) Vested rights
2) Most significant relationship (rejected in VA)
3) Govt interest analysis

Question 34

What is the vested rights approach?

Answer 34

The law to be applied is the law where the rights of P vested, and each area of law has a rule or rules to tell us when/where this is.

Question 35

4 Steps to Choose Correct Law under Vested Rights:

Answer 35

1) List the different laws that you have in prob
2) Characterize the issue of law involved in the problem
3) Find the conflicts rule for that area of law
4) See of there are any defenses to the application of the law chosen by the rule

Question 36

What is the vested rights approach to torts suits?

Answer 36

1) Does the legal issue in question involve a loss distribution rule or a rule regulating conduct?
2) If the rule is a loss distribution rule and tort is defamation, apply law of place of publication.
3) If rule is loss distribution rule the choice of law is made by applying the vested rights approach i.e. the law of the place of the wrong.

Question 37

What is a rule regulating conduct and what law applies?

Answer 37

A rule of the road. For all rules regulating conduct, apply the law of the place of the conduct.

Question 38

What is a loss distribution rule?

Answer 38

All tort rules that aren’t rules regulating conduct are loss distribution rules that determine which party bears the loss.

Question 39

What is the vested rights approach to determining which law applies in contract?

Answer 39

1) Did the parties validly choose the law to be applied in event of litigation?
2) Does a special UCC rule apply?
3) Does the rule of validation apply?
4) If none of these three situations apply, apply the law of the place of making of K.

Question 40

When may parties validly choose the law to be applied in the event of litigation of K?

Answer 40

1) Parties may always choose the law in K for matters of K construction. Any law may be chosen.
2) Parties may choose the law to governing matters of K validity ONLY IF: a) choices isn’t contrary to public policy of state whose law would otherwise be chosen, b) reasonable relationship to parties or transaction, c) choice is free of duress and not a K of adhesion (take it or leave it).

Question 41

What does a special UCC rule apply?

Answer 41

Cases w/ facts falling under control of UCC governed by law of the place of forum so long as forum has substantial relationship to transaction. If a personal property issue comes under UCC and rules for secured transactions, law chosen is state of debtor’s residence or place of business.

Question 42

When does the rule of validation apply?

Answer 42

Courts in usury (illegal lending at high interest rates) cases will apply the law of the state that would uphold the validity of transaction so long as the state has some relation to transaction.

Question 43

What is the place of making of a contract?

Answer 43

Place where the last act took place that creates the contract, which is usually the place of acceptance. This determines all issues relating to validity of a K such as formalities, offer or acceptance or consideration, capacity of parties, misrepresentation and fraud, K interpretation.

Question 44

What law applies if the K issue is not one of validity but one of performance?

Answer 44

Law of the place of performance applies to matters such as adequate performance, by whom performance was supposed to be made, manner or time or place of performance, and excuses for non-performance.

Question 45

What law applies under a vested rights regime for REAL PROPERTY?

Answer 45

For issues about land sale K, use K rules. For deed and every other issue related to conveyance of real property, use the law of the situs i.e. the law of the place where the property is located.

Question 46

In vested rights, what law applies to personal property cases?

Answer 46

Use the situs rule: location of property at the time of the relevant transaction.
BUT if the issue is passing of personal property by intestate succession, the state chosen is the deceased’s domicile at death.

Question 47

When is a marriage valid?

Answer 47

If marriage is valid where performed, it is valid everywhere UNLESS such marriage violates the strong public policy of a state. If a marriage is void where performed because it didn’t comply w/ some technical requirement of the state where performed it can still be recognized IF it would have complied w/ forum rule.

Question 48

What three defenses may be raised to a proposed choice of law?

Answer 48

1) Law chosen is procedural not substantive
2) Law is against public policy of the forum state (v. hard to use because law must be super offensive for this to apply)
3) The law is a penal law (criminal judgment or civil fine)

Question 49

What is procedural v. substantive law?

Answer 49

Procedural: burden of proof or SOL
Substantive: contributory or comparative negligence, statutes of frauds, parol evidence rule.

Question 50

What is the borrowing statute exception for procedural rules?

Answer 50

Statute borrows and applies the shorter SOL of state where COA arose

Question 51

What are embedded statutes of limitations?

Answer 51

SOLs that are part of state substantive law giving a COA, which are considered substantive and must be applied.

Question 52

What choice of law rules are applied in federal courts?

Answer 52

A federal court sitting in diversity must use the choice of law rules of the state in which it sits. If a case is transferred by one federal district to another district under the rule allowing such transfer for convenience of parties the court to which the case is transferred must apply the law of the state in which the transferor court sits.

Question 53

What is notice and proof of foreign law?

Answer 53

Courts will take judicial notice of sister state and federal law, but law of a foreign country traditionally is a fact which must be pleaded and proved. If foreign country law can’t be determined, forum court applies forum law.