Conflict of Laws

Question 1

The three theories for conflicts of law are

Answer 1

(1) vested rights (1st restatement);
(2) interest analysis
(3) most significant relationship test (2nd restatement)

Question 2

To make a choice of law decision, courts apply the law of the state

Answer 2

in which the court sits.

Question 3

The place where the parties rights “vested” is

Answer 3

the place where the last event occurred necessary to create a cause of action.

Question 4

Under the vested rights approach, the approach is

Answer 4

(1) characterize the area of law (tort, contract)
(2) is the issue substance or procedure
(3) find the applicable choice of law rule

Question 5

Under the vested rights approach, the choice of law rule for a tort is the law of the

Answer 5

place where the wrong/injury occurred.

Question 6

Under the vested rights approach, the choice of law rule for a contract is the law of the

Answer 6

place where the contract was made (or was to be performed).

Question 7

Under the vested rights approach, the choice of law rule for a procedural rule is the law of the

Answer 7

forum state.

Question 8

Vested rights approach: problem of “characterization”, if a case or issue can reasonably be characterized in two different ways, then note the fact and

Answer 8

apply both rules.

Question 9

Under the interest analysis (government interest approach), the general approach is

Answer 9

(1) make a determination on each issue
(2) begin by applying the law of the forum state applies unless a party requests otherwise
(3) analyze the policies of the laws of the relevant states and the extent to which those policies and interests would be advanced by application of the respective laws

Question 10

Under the interest analysis (government interest approach), the two-step application is

Answer 10

(1) identify the policies behind the laws;
(2) does the law’s application serve the interests of that policy, does the state’s interest extend to the multi-state circumstances of this case

Question 11

Four typical examples of interest analysis are

Answer 11

(1) identify false conflicts (laws conflict, but application would not further underlying policy in this case)
(2) true conflict - apply law of forum state
(3) disinterested forum - apply either (i) law that is closest to the law of the other applicable laws of forum, or (ii) the better law
(4) “unprovided-for” cases - when no state really has an interest, apply forum law

Question 12

Under the most significant relationship test (MSR test), the court applies the law of the state which was the

Answer 12

most significant relationship to the transaction AND the parties.

Question 13

The controlling principles of the MSR test are

Answer 13

(2) relevant policies of the forum
(3) relevant policies of other interested states
(4) protection of justified expectations (for Ks)
(5) certainty, predictability, uniformity of result

Ones that don’t matter:
needs of interstate/international judicial system, basic policies underlying the field of law, ease of determining and applying the chosen law

Question 14

Relevant contacts under the MSR test for tort cases are

Answer 14

places of injury, place of conduct, parties’ domicile, residence, place of incorporation and business, place where the parties’ relationship is centered

Question 15

Relevant contacts under the MSR test for contract cases are

Answer 15

place of contracting, negotiation, performance; location of subject matter of the K, place of parties’ domicile, residence, incorporation, or business.

Question 16

If in federal district court, apply the choice-of-law doctrine the

Answer 16

state in which the court sits.

Question 17

If a case is transferred between federal judicial districts, apply the choice-of-law doctrine of the

Answer 17

transferor state/district, IF venue was proper in that forum.

Question 18

It violates Due Process to take someone’s property using the law of a state with which the

Answer 18

defendant has no contact.

Question 19

Under the Full Faith and Credit Clause, states must recognize the ______ of other states.

Answer 19

states

Question 20

The test for determining where a choice-of-law is constitutional is

Answer 20

(1) the state has contacts with the parties or transaction;
(2) that state has an interest in the events and outcome of the action

**Test is: must have a significant contract or aggregation of contacts, creating state interests, and that choice of law is neither arbitrary nor fundamentally unfair

Question 21

Under the MSR test for tort actions, the general rules is that

Answer 21

the place of injury controls, unless another state has a more significant relationship.

Question 22

The enforceability of a choice of law clause depends on the

Answer 22

contract term it is applied to.

Question 23

A choice of law provision is ALWAYS enforceable if the issue is one which

Answer 23

the parties COULD have resolved by explicit contractual provision (i.e. the parties had full freedom of contract on that issue).

Question 24

If the issue is one which the parties could NOT have resolved by explicit provision, a choice of law provision is still enforceable unless

Answer 24

(1) the chosen state has NO relationship to the transaction; or
(2) the chosen law is contrary to the fundamental public policy of the forum state

Question 25

Under the vested rights approach, for issues relating to contract validity, the place where the contract was ___________ governs and is the place where ___________.

Answer 25

made or came into existence;
the last event occurred that made the contract binding:

(1) where offer was irretrievably communicated
(2) place of verbal acceptance
(3) place where acceptance was mailed
(4) if agent is used to deliver, place where acceptance is delivered

Question 26

When dealing with contracts of title to land under the vested rights approach, apply the law of the state where

Answer 26

the land is located (situs rule).

Question 27

Under the vested rights approach, for issues relating to contract performance, the place where ____________ governs.

Answer 27

performance takes place

Question 28

Under the vested rights approach, if the issue is a matter of procedure, apply the law of the

Answer 28

forum state. Issues that look procedural but are usually considered substantive are statutes of fraud, parol evidence rule.

**Statute of limitations is NOT substantive under the vested rights approach (but it is under Erie). But look for a borrowing statute.

Question 29

Under the interests analysis approach, if the issue is a matter of procedure, apply

Answer 29

the forum with the greatest interest, which usually ends up being the law of the forum state anyway.

Question 30

Under borrowing statutes, the forum state applies the ______ of two potentially applicable statutes of limitation.

Answer 30

shorter

Question 31

Under the MSR test or interest analysis for real property issues, the law of the ______ almost always has the greatest interest.

Answer 31

place where the property is located.

Question 32

Under the vested rights approach for PERSONAL property issues, apply the law of the place where

Answer 32

the property was located at the time of the pertinent transaction.

Question 33

Under the vested rights approach for decedents’ estates issues

Answer 33

(1) real property - law of land’s location

(2) personal property - law of decedent’s domicile

Question 34

The vested rights rules for corporations are

Answer 34

(1) state of incorporation for issues relating to the corporation’s creation, dissolution, internal affairs, liability of officers and directors to shareholders (internal affairs doctrine), MSR also probably finds the same
(2) external relationships - corp’s relationships with 3rd parties governed by standard choice of law rules

Question 35

The three requirements to recognize the judgment of another state’s court are

Answer 35

(1) court had jurisdiction over the SUBJECT MATTER and the PARTIES
(2) judgment is final
(3) judgment is on the MERITS

Question 36

A court may decline to apply the law of a foreign state if it

Answer 36

violates a fundamental public policy of that state.

Question 37

Children are assigned the domicile of their

Answer 37

parents.

Question 38

Incompetents who were incompetent from birth retain the domicile of their

Answer 38

choice/birth?

Question 39

People who had capacity to establish a domicile but later become incompetent retain the domicile

Answer 39

of their choice.

Question 40

Injunctions are typically _______ final.

Answer 40

never. The issuing court can usually go back and review., so they don’t REQUIRE full faith a credit treatment, though a court can of course permissively recognize it.

Question 41

The two defenses to full faith and credit are

Answer 41

(1) penal judgments (for offenses against the public)

2) extrinsic fraud (if recognized as a defense by court that entered the judgment

Question 42

Extrinsic fraud defense requires

Answer 42

I dunno.

Question 43

Full Faith and Credit does to apply to federal district courts, but __________ produce the same effect.

Answer 43

federal statutes.

Question 44

Most states under the concept of comity will enforce the judgments of foreign _________.

Answer 44

countries

Question 45

To enforce the judgment of a foreign country, the judgment must

Answer 45

(1) be by a court that had proper jurisdiction over the parties
(2) the judicial system has regular and just proceedings
(3) some states require reciprocity

Question 46

Under the Uniform Foreign Money Judgments Recognition Act, states will recognize the money judgments of foreign countries under the same standards as

Answer 46

Full Faith and Credit for a sister state.

Question 47

A state has subject matter jurisdiction to enter a divorce as long as

Answer 47

at least one spouse is domiciled in the state.

This is just to declare the couple divorced. Any disposition of property requires PJ.

Question 48

In order to receive full faith and credit for divorce judgments related to marital property, alimony, and child support, the issuing court must have

Answer 48

personal jurisdiction.

Question 49

A child custody decree requires that the issuing court be in the

Answer 49

child’s home state.