Conflict of Laws

Question 1

Conflict of Laws Opening Statement

Answer 1

Conflict of laws questions concern matters having a nexus to more than one jurisdiction and problems that arise when jurisdictions’ laws differ or conflict.

Question 2

What is domicile?

Answer 2

One’s fixed, principal, and permanent home (need physical presence and intent to remain, no minimum time).

Question 3

What are the three approaches to a conflict of laws?

Answer 3

1st Restatement (“vested rights approach”), interest analysis approach, 2nd Restatement (most common)

Question 4

How does the 1st Restatement approach a conflict of laws?

Answer 4

It has various bright-line rules for different areas of substantive law. Torts: last event necessary to create liability; Ks: formation or performance, depending on question at issue; Prop: where real prop sits, where pers prop transaction occurred; Corporations (formation, internal affairs): state of incorporation
*Don’t forget RADS escape devices.

Question 5

RADS escape devices under 1st Restatement

Answer 5

In order to avoid inflexibility consider: renvoi (pointing back), area of substantive law change, depecage (issue-by-issue), substance v. procedure (procedure still always forum state)

Question 6

What is the interest analysis approach?

Answer 6

Contact with the case (which states have a bona fide interest?); if no interest, apply forum law; if true conflict, apply forum law. (No distinction between substantive and procedural law.)

Question 7

What is the 2nd Restatement approach?

Answer 7

Issue-by-issue, apply the state substantive law with the most significant relationship. Weigh FINEBUD general factors, then CRIP connecting factors for torts, SOPP for Ks (but always where real prop sits and state of incorporation for corporate formation/internal affairs).
Apply procedural law of forum state (including SOL unless unreasonable).

Question 8

What are the CRIP connecting factors for torts (2nd R)?

Answer 8

Conduct causing the injury, relationship of the parties, where injury suffered, location of parties.

Question 9

What are the SOPP connecting factors for Ks (2nd R)?

Answer 9

Subject matter, offer-acceptance location, parties’ place, performance place.

Question 10

What are the FINEBUD general factors (2nd R)?

Answer 10

Forum’s policies, interested states’ interests, needs of interstate system, expectations of parties, basic policies in field of law, uniformity, determination/application ease.

Question 11

What are specific intestate conflict rules?

Answer 11

Succession of real property governed by state where it’s located; personal prop by state of decedent’s final domicile.

Question 12

What are specific marriage/divorce conflict rules?

Answer 12

Validity of marriage: state where celebrated (unless against pub pol). Divorce: grounds by forum law, jurisdiction over both spouses if P is domiciled in forum.

Question 13

How will a court take notice of foreign law?

Answer 13

Party has to raise and prove it herself for court to take judicial notice.

Question 14

Can parties contract choice of law?

Answer 14

Yes, if contracted in good faith, even if forum has no connection to the contract.

Question 15

What defenses are available against application of foreign law?

Answer 15

Local public policy (“shocking,” very high bar), the law is penal (crim or civ w/ fine; punitive damages ok), the law is a tax law.

Question 16

What con’l limitations are there to choice of laws?

Answer 16

DP only violated if forum cannot show “significant contact creating state interests, neither arbitrary or fundamentally unfair” (Allstate, very low bar).

Question 17

How are federal-state conflicts handled?

Answer 17

Fed law trumps state law; in fed dist ct case w/ diversity jxn, Klaxon requires court apply choice-of-law rules of state in which it is located.

Question 18

What effect does a judgment have outside that forum?

Answer 18

Full Faith and Credit Clause creates a general right to have a state ct recognize and enforce a foreign judgment. By statute, fed cts recognize state ct judgments, and SCOTUS has held that state cts do the same for fed judgments.
Exceptions: jxn was lacking (and not decided), not on the merits, not final, penal judgments, inconsistent judgments (recognize most recent), public policy.
*Jxn may only be relitigated if decided in divorce cases.
*Follow orig forum law for whether claim/issue preclusion applies.
*Int’l judgments recognized under doctrine of comity.

Question 19

Where has statutory Full Faith and Credit been created when con’l FF&C was lacking?

Answer 19

Where “not final” family law judgments, under Uniform Child Custody Jxn and Enforcement Act and Parental Kidnapping Protection Act, jxn for custody disputes if: home state jxn, emergency jxn, significant connection jxn, or vacuum jxn.
State may decline jxn for wrongful conduct.
State may not modify other’s custody orders, or child support orders if one parent or child in that state (unless no objection).