Conflict of Laws

Question 1

To have a conflict of law, what must you have?

Answer 1

More than one jurisdiction: 2 state governments or a state government and the federal government.

Question 2

Law comes in a variety of forms:

Answer 2

Includes court opinions, statutes, court rules, regulations, court order, judgement.

Question 3

Various laws distill to 3 subcategories appearing on the bar exam:

Answer 3

1. Personal Jurisdiction Questions; 2. Choice of Law Questions; 3. Recognition of Judgment Questions

Question 4

Personal Jurisdiction Questions call for what?

Answer 4

An analysis of a court’s assertion of judicial power over the parties to a law suit.

Question 5

Choice of Law Questions call for what?

Answer 5

Choosing among competing legal principles by analyzing the reach of competing jurisdictions’ legislative or other law-making power.

Question 6

Recognition of Judgment Questions call for what?

Answer 6

Analyzing the effect in one jurisdiction of a judgment rendered by a court in another jurisdiction.

Question 7

The trigger for a conflict of laws issue on a bar exam question is what?

Answer 7

a jurisdictional power struggle

Question 8

What is a forum court and why does it matter?

Answer 8

The forum court is the court where the law suit is pending. One should resolve conflict of laws problems from the point of view of the forum court.

Question 9

The US Supreme Court has ruled that a court’s power to assert personal jurisdiction is measured by what?

Answer 9

A defendant’s contacts with the forum state.

Question 10

Contact analysis is divided into what two types of jurisdiction?

Answer 10

Specific jurisdiction and general jurisdiction

Question 11

Specific Jurisdiction:

Answer 11

A court may exercise specific jurisdiction over a defendant who has “minimum contacts” with the forum state. In this case, the suit arises out of or is related to the defendant’s contacts with the forum. Quality of contacts is what matters.

Question 12

General Jurisdiction

Answer 12

A court may exercise general jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum state, so long as the contacts are sufficiently numerous to amount to continuous and systematic activity in the forum state. The contacts can be irrelevant to the suit. Quantity of contacts is what matters.

Question 13

Personal Jurisdiction in Federal Courts should be analyzed how?

Answer 13

Analyze the power of the federal court to assert personal jurisdiction over a particular defendant in the same way that you would analyze the power of a state court within the jurisdiction where the federal district court sits.

Question 14

What are the two varieties of Conflicts of Laws?

Answer 14

1. Conflicts between State and Federal Law; 2. Conflicts between State Laws.

Question 15

Conflicts between State and Federal Law is governed by what?

Answer 15

Erie Doctrine and the Supremacy Clause

Question 16

Conflicts between State laws is governed by what?

Answer 16

Choice of Law Methodologies (First Restatement, Government Interest Analysis, and Second Restatement.

Question 17

What is the Restatement (First) of Conflict of Laws approach?

Answer 17

Territorial approach.

Question 18

What is the Restatement (Second) of Conflict of Laws approach?

Answer 18

Most significant relationship approach.

Question 19

Territorial approach calls for a 3 step analysis:

Answer 19

1. Characterize the area of substantive law of the conflicting laws: e.g., contract, tort, or property; 2. Determine the particular choice of law rule that governs, e.g., for tort issues, the Restatement First designates the place where an accident occurs as providing the legal principles that govern liability; and 3. Localize the rule that applies, e.g., if the law where the accident occurred governs, one must determine where the accident actually occurred under the case’s facts.

Question 20

The most famous rule for the First Restatement is what?

Answer 20

Lex loci delicti

Question 21

What is lex loci delicti?

Answer 21

A rule for torts: the law of the place of wrong determines whether a person has sustained a legal injury. Even if negligence that caused the injury occurred in a different jurisdiction, we look at where did the injury in fact occur.

Question 22

For contracts, what rules does the First Restatement provide?

Answer 22

A variety of rules, although an important general principle provides that the law of the place of contracting determines the validity and effect of a promise for most purposes.

Question 23

For property issues, almost all First Restatement sections follow what rule?

Answer 23

The situs rule: the law of the place where the property is located governs.

Question 24

How does a governmental interest analysis resolve conflicts issues?

Answer 24

By referring to policies underlying competing laws.

Question 25

From what premise does a governmental interest analysis start?

Answer 25

that a forum should apply its own law unless a party requests that another law apply.

Question 26

If a party requests that another law should apply, what are the steps that a court will use if it applies a governmental interest analysis?

Answer 26

1. Identify policies through the ordinary processes of construction and interpretation. Then the court should evaluate each state’s policies in light of the parties’ contacts with the state to determine if the policies are relevant to the particular dispute before the court. If the state’s policies are relevant to the dispute, then the court should conclude that the policies represent interests of the states.

Question 27

4 outcomes of a governmental interest analysis:

Answer 27

1. False conflict; 2. Apparent and true conflict; 3. Disinterested forum; 4. An unprovided for case.

Question 28

What is a false conflict in a governmental interest analysis?

Answer 28

If the court finds that one state has an interest and the other does not, the court should apply the law of the interested state.

Question 29

What is apparent and true conflict in a governmental interest analysis?

Answer 29

If the court finds an apparent conflict between interests, it should ascertain whether a “more moderate and restrained interpretation” of the policy or interest of one state or the other will avoid the conflict. If the court finds that the conflict of legitimate interests in unavoidable, the court has identified a true conflict and should apply forum law.

Question 30

What is disinterested forum in a governmental interest analysis?

Answer 30

If the forum court has no interest in applying its own law, but determines that two or more states have legitimate competing interests, the forum can dismiss the case pursuant to the doctrine of forum non conveniencs. If forum non conveniens is not available, the forum court may take one of two routes: 1. make its own judgment as to which law is better; or 2. apply the law that most closely resembles its own.

Question 31

What is an unprovided for case in governmental interest analysis?

Answer 31

If the court finds that no state has an interest in the application of its law, the forum law should govern.

Question 32

What does the Second Restatement do with regard to it’s analysis policy?

Answer 32

Seeks to incorporate the advances in modern approaches into a flexible approach that avoids the mechanical rigidity of the First Restatement. It is a “most significant relationship” analysis.

Question 33

Except for a few areas for which it provides bright line rules, the Second Restatement approach interweaves two elements:

Answer 33

The policies of Section 6 and connecting factors of particular significance for various types of lawsuits.

Question 34

Section 6 of the Second Restatement lists what?

Answer 34

general policy consideration that may serve as guideposts in any analysis under specific sections of the Restatement Second.

Question 35

What are some of the considerations included in Section 6 of the Second Restatement?

Answer 35

1. The needs of the interstate and international systems; 2. the relevant policies of the forum; 3. the relevant policies of other interested states including their interests in having their law applied to the particular issue; 4. the protection of party expectations; 5. the basic policies underlying the particular field of lay, 6. the objectives of certainty, predictability, and uniformity of result; ;and 7. the ease of determining and applying the law previously identified as applicable.

Question 36

What are connecting factors for Second Restatement analysis ?

Answer 36

For particular areas of law, the restatement lists “connecting factors” that provide specific guidance about the jurisdictions that have a claim to the application of their laws. These are the ones that are common concerns for that field of law–of which we have from taking the substantive courses.

Question 37

What is The Most Significant Relationship in a Second Restatement analysis?

Answer 37

Absent a preexisting choice by the parties, the court is to apply the law of the jurisdiction with the most significant relationship to the dispute. The court should arrive at this conclusion by reference to both the policy provisions of Section 6 and the connecting factors.

Question 38

What is meant by saying that the Second Restatement analysis is a qualitative analysis and a quantitative analysis?

Answer 38

The contacts are to be evaluated according to their relative importance to the particular issue. This is done by analyzing contacts in light of Section 6.

Question 39

Steps for a Bar Exam Answer:

Answer 39

1. Describe Pennsylvania’s hybrid approach; 2. Perform the first steps of governmental interest analysis: identify policies behind competing laws and compare each jurisdiction’s policies with the relevant contacts in the jurisdiction to determine whether the policies are implicated in this case; 3. For false conflicts, apply the law of the interested state; 4. For true conflicts, resolve the conflicts by applying the law of the state with the greatest interest. Case law suggests that the state with the greatest interest will be the state with the most significant relationship with the dispute.

Question 40

How should one evaluate the contacts for a Bar Exam Answer?

Answer 40

Evaluate the contacts qualitatively, not just by counting them. To perform this qualitative analysis: 1. List the connecting factors (contacts between each state, the parties, and the subject matter); 2. Evaluate the connecting factors by reference to the policy oriented principles listed in Section 6.

Question 41

Additional tip for Bar Exam Answer:

Answer 41

If there is time, add a short description of these three approaches and venture a short answer on how the conflict of laws would be resolved under each approach individually.

Question 42

On a Bar Exam Question you usually need to talk about the general approach of Pennsylvania (hybrid) plus what?

Answer 42

the specific rule for that particular area of law.

Question 43

What is Pennsylvania’s specific rule for property?

Answer 43

For all choice of law approaches, the situs of the property will generally provide the governing law for issues respecting the property. For tangible property, the analysis focuses on the situs of the property at the time of the transaction. This makes sense because the situs will have the greatest interest in applying its law.

Question 44

2 issues in Contract law with special rules for Pennsylvania’s analysis of choice of law:

Answer 44

1. Choice of law clauses; 2. Choice of forum clauses.

Question 45

What is Pennsylvania’s rules regarding choice of law clauses?

Answer 45

Pennsylvania honors the law’s basic policy of carrying out the contracting parties’ intent to choose expressly a governing law for their disputes. Qualifications to this general principle exist regarding 1. UCC; 2. Restatement Second; 3. Adhesion Contracts.

Question 46

What is Pennsylvania’s rule regarding UCC?

Answer 46

For contracts governing the sale of goods, Pennsylvania’s version of the UCC provides the general rule that the parties choice should be honored so long as the chosen jurisdiction bears a reasonable relation to the transaction.

Question 47

What is Pennsylvania’s rule regarding Second Restatement?

Answer 47

Based on Section 187: 1. instructs the courts to disallow the parties’ choice where the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice; 2. also authorizes courts to refuse to apply a law that is contrary to a fundamental policy of a state that has a materially greater interest in the dispute than the chosen state.

Question 48

What is Pennsylvania’s rule regarding Adhesion Contracts?

Answer 48

Pennsylvania courts will not honor a choice of law clause if the parties did not truly consent to the clause.

Question 49

What is a Choice of Forum Clause?

Answer 49

With these clauses, parties to a contract designate the court where their disputes must be resolves.

Question 50

What view does Pennsylvania use for Choice of Forum Clause?

Answer 50

Modern View

Question 51

Modern View of Choice of Forum Clauses:

Answer 51

Acknowledges that while private parties may not contract to prevent a court from asserting its jurisdiction, a court of proper venue and jurisdiction should nonetheless decline to proceed with a case where the parties have freely agreed that the litigation should be conducted in another forum. But the agreement must not be unreasonable at the time of the litigation. Mere inconvenience does not establish unreasonableness; instead, recognition of the choice of forum clause must subvert the interests of justice before a court should decline to enforce it. (fair fighting rule)

Question 52

What is Pennsylvania’s rule regarding marriage?

Answer 52

Pennsylvania follows the general “place of celebration rule”: the validity of marriage is governed by the place where the marriage was solemnized.

Question 53

What is Pennsylvania’s rule regarding corporations?

Answer 53

The law of the state of incorporation determine the duties and liability of an officer or director as well as issues related to creation and dissolution.

Question 54

What is Pennsylvania’s rule regarding Substance/Procedure Dichotomy?

Answer 54

Forum law governs questions of procedures. A court can escape the application of a foreign state’s laws by characterizing a particular legal issue as procedural. Rules that concern the conduct of litigation are generally procedural and rules that govern out of court conduct are generally substantive.

Question 55

How a question comes out may turn on the characterization of the case, such as whether it is contract or property. What does Pennsylvania prefer when faced with this choice?

Answer 55

property. Mention both.

Question 56

What is the rule for statues of limitations in Pennsylvania in choice of law?

Answer 56

Traditionally deemed to be procedural, so apply law of forum. Pennsylvania has a statute that is known as a borrowing statute, provides that a court should apply the shorter of two competing limitation periods.

Question 57

What are public policy considerations in Pennsylvania in choice of law?

Answer 57

Traditionally, courts have refused to apply a foreign law if it is contrary to a strong public policy of the forum. The Second Restatement validates such a refusal, if the court carefully considers its decision.

Question 58

What are domicile considerations in Pennsylvania for choice of law?

Answer 58

1. Individuals: physical presence and intent to be domiciled in a particular place are both requirements for establishing domicile; 2. Corporations: domiciled in their state of incorporation.

Question 59

How to apply the Erie Doctrine on the Bar Exam?

Answer 59

Where state and federal law conflict, one begins the analysis of choosing between the two laws by identifying what type of federal law is implicated: 1. Federal statutes; 2. Federal Rules of Civil Procedure; 3. Federal Court made law

Question 60

What does one look at in conflict of law where a federal statute is implicated?

Answer 60

Supremacy Clause requires that federal law govern in the face of conflicting state laws (so long as the federal statute is a constitutionally valid exercise of congressional power.)

Question 61

What does one look at in conflict of law where Federal Rules of Civil Procedure is implicated?

Answer 61

A Federal Rule of Civil Procedure should govern in the face of a conflicting state rule so long as the Federal Rule is valid under the Rules Enabling Act and the Constitution. The rule will be valid if it regulates procedure.

Question 62

What does one look at in conflict of law where a federal court made law is implicated?

Answer 62

Federal court-made law may govern in the face of a conflicting state rule only so long as the application of federal law does not violate the aims of Erie: discouraging forum shopping and avoiding inequitable administration of laws.

Question 63

The Rule of Klaxon v. Stentor:

Answer 63

A federal court exercising diversity jurisdiction should apply conflict of law rules of the forum state. Thus, where Erie analysis points to state law, one must choose the appropriate state law using the forum state’s choice of law methodology.

Question 64

What issue does a recognition of judgment question raise?

Answer 64

Whether a judgment rendered in one jurisdiction must be honored in the courts of another jurisdiction.

Question 65

Recognition of Judgment questions call for a two step analysis:

Answer 65

1. Determine whether the judgment is entitled to Full Faith and Credit; 2. if the Full Faith and Credit principle attaches, the court that is asked to honor the judgment must then ascertain whether the rendering court would give the judgment res judicata or collateral estoppel effect.

Question 66

What is the Full Faith and Credit Principles and where do they come from?:

Answer 66

The Full Faith and Credit Clause governs the relationship between states. A statute implementing the Full Faith and Credit Clause governs the relationship between state and federal courts

Question 67

What does the Full Faith and Credit principle require?

Answer 67

Requires one court to give a judgment the same sanctity and effect it would enjoy in the court that rendered the judgment.

Question 68

In order for the Full Faith and Credit principle to attach: what 3 requirements must be satisfied?

Answer 68

1. Jurisdiction: the court that rendered the judgment must have possessed subject matter jurisdiction over the case and personal jurisdiction over the defendant OR AT LEAST must have allowed a full and fair opportunity to challenge its jurisdiction; 2. On the Merits: the rendering court’s judgment must be on the merits; 3. Final: the rendering court’s judgment must be final.

Question 69

Res judicata:

Answer 69

The doctrine of res judicata or claim preclusion prevents a party from relitigating an entire suit.

Question 70

For res judicata to apply under Pennsylvania law:

Answer 70

For res judicata to apply under Pennsylvania law, 3 requirements must be satisfied: 1. the rendering court judgment must be final; 2. the rendering court judgment must involve the same cause of action as the honoring court lawsuit: either the second suit must involve the same subject matter and the same ultimate issue or the second suit must seek relief for the same harm; 3. the honoring court suit must involve the same parties or their privies as the rendering court suit. Privies include such individuals as successors in interest, holders of future interests, and beneficiaries of actual parties to the rendering court suit.

Question 71

Collateral Estoppel:

Answer 71

The doctrine of collateral estoppel or issue preclusion prevents a party from relitigating issues in a subsequent law suit. Collateral estoppel applies even where the cause of action is different in the second suit than in the first suit.

Question 72

For Collateral Estoppel to apply under Pennsylania law, three requirements must be satisfied:

Answer 72

1. The issue must have been actually litigated and decided in the first proceeding.; 2. The issue must have been necessary to support the judgment of the first proceeding; 3. Although the party trying to benefit from collateral estoppel need not have been a party to the first proceeding, the party against whom collateral estoppel is asserted must have been a party or in privity with a party to the prior action. In addition, the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior action.

Question 73

What is the general rule regarding divorce judgment?

Answer 73

Divorce decrees deserve full faith and credit in one state if the rendering state had proper jurisdiction and the decree is valid in the rendering state. Jurisdiction is established if one of the parties is domiciled in the rendering state.

Question 74

What is the Pennsylvania requirement regarding divorce?

Answer 74

Pennsylvania law provides that a spouse is not entitled to commence an action for divorce in the commonwealth unless at least one of the parties has been a bona fide resident for at least six months immediately prior to the commencement.

Question 75

Divisible divorce:

Answer 75

Although a state can render a valid ex parte divorce decree where only one spouse is domiciled in the state, the same rule does not govern related matters such as property settlements, alimony, support, and child custody. The result is to make divorce divisible–a decree can be valid to the extent that it affects marital status, but invalid as to other matters concerning personal obligations. For the decree to be valid as to such personal obligations, the rendering court must have personal jurisdiction over both parties.