Conflict of Laws

Question 1

When might a conflict of laws issue come up?

Answer 1

• Facts include connections to multiple states

- Combined with other topics (family law, federal civ pro, or torts)

Question 2

What are the two distinct testing areas for conflicts?

Answer 2

1. Recognition of judgments
2. Choice of law

Will also discuss domicile.

Question 3

When may a recognition of judgments question arise?

Answer 3

When two conditions are satisfied (necessary predicate):

1. A judgment has been issued by a court, and
2. A party is seeking to have that judgment recognized in a second, different court.

The core question is whether the recognizing court will recognize the judgment issued by the rendering court

Question 4

What is a rendering jdn?

Answer 4

The place where the judgment was originally entered?

Question 5

What is a recognizing jdn?

Answer 5

The place where the recognition is being sought

Question 6

Why might a party seek recognition of existing judgment?

Answer 6

1. P would seek recognition in order to access enforcement mechanisms in the rendering state
2. Defendants will seek recognition to prevent a plaintiff from relitigating a claim or issue

Question 7

What is the analysis for determining a recognition of judgments question?

Answer 7

1. Is the rendering jdn a sister state or a foreign country?

If sister state:
1. Are the requirements of full faith and credit satisfied?
2. Are there any valid defenses?
Recognition is required when the answer to question 1 is YES and the answer to 2 is NO.

If foreign country:
Is the foreign judgment entitled to comity?

Question 8

What are the steps for determining whether a sister state’s judgment should be recognized?

Answer 8

Note: if a rendering court is a sister state (another US state), then the source of that obligation to recognize the judgment is Art. 4’s FFC clause.

Part 1: FFC (jdn, merits, finality)
Step 1: did the rendering state have jdn over the parties and subject matter?
Step 2: was the judgment entered by the rendering state on the merits?
Step 3: was the rendering court’s judgment final?

Part 2: Defenses Analysis

• Penal judgments
• Extrinsic fraud

Question 9

What are the tests for determining whether a rendering state had jdn over the parties and subject matter, for purposes of testing whether the sister state meets Full Faith and Credit?

Answer 9

Rule: rendering state must have jdn over the parties AND the subject matter.

Exception: when the issue of jdn has been fairly and fully litigated, then the jurisdictional determination itself is entitled to full faith and credit (one bite at the apple)

Applicable law: rendering state

Question 10

What is the rule for determining whether a rendering jdn ruled on the merits of a case, for the Full Faith and Credit Test (sister state - recognition of judgment)

Answer 10

Rule: jdugment entered by rendering state must have been on the merits

Dismissals on the merits:

• Default judgments
• Consent judgments after settlement

Dismissals NOT on the merits:

• Time bars
• Lack of jdn
• Mis-joinder
• Improper venue
• 12(b)(6) UNLESS adjudicated on the merits with prejudice

Note: a marriage is not a judgment, and therefore is not entitled to FFC.

Applicable law: rendering state

Question 11

What is the rule for determining whether a rendering jdn made a final judgment, for purposes of satisfying the sister state Full Faith and Credit test (recognition of judgment)?

Answer 11

Rule: judgment entered by rendering court must be a final judgment.

Most common application will be a judgment on appeal, not considered final.

NOT final:
- modifiable order re: future payments (i.e. alimony)

Applicable law: rendering state

Question 12

What are the valid defenses to a Full Faith and Credit violation, for purposes of having a sister state’s judgment recognized?

Answer 12

1. Penal judgments

2. Extrinsic fraud

Question 13

What is the penal judgment defense to Full Faith and Credit?

Answer 13

Rule: a penal judgment is not entitled to FFC.

Definition: penal judgment is one that punishes offenses against the public (was P in rendering jdn the state?)

Can’t be a private plaintiff

Question 14

What is the extrinsic fraud defense to Full Faith and Credit?

Answer 14

Rule: judgment obtained by extrinsic fraud is not entitled to FFC

Definition: extrinsic fraud is fraud that could not be corrected during the regular course of proceedings leading to the judgment

Ex. judge was bribed

Question 15

What are some invalid defenses to Full Faith and Credit?

Answer 15

Mistakes, public policy.

Question 16

What is the rule for determining whether comity exists, such that a foreign judgment should be recognized by a US state?

Answer 16

Rule: under the principles of comity, a recognizing court will exercise discretion to decide whether the foreign judgment should be recognized.

Questions:

1. Final judgment?
2. Judgment on the merits?
3. Did the foreign court have jurisdiction? (note: courts can analyze merits of jdn question, even if a foreign state already ruled on jurisdiction)
4. Were the procedures in the foreign court fair? (i.e. inconsistent with american principles of due process or something)

Question 17

When might a choice of law question arise on the exam?

Answer 17

When two conditions are satisfied:

1. Lawsuit involves factual connections with multiple states, without mention of a judgment
2. Multiple states have different laws leading to different results

The core question is which state’s law will govern.

The core answer is that the governing law is the law selected by the forum court, according to its choice of law approach, assuming no applicable constitutional or statutory restrictions apply

Question 18

What is the choice of law exception governing diversity cases in federal court?

Answer 18

Since choice of law is a substantive issue under Erie, the rule is that a federal court sitting in diversity always applies the choice of law approach of the state in which it sits.

Question 19

What is the choice of law exception governing transferred diversity cases?

Answer 19

Rule: when a diversity case is transferred within the federal system, the fed court applies the choice of law approach of the TRANSFEROR court.

Question 20

What are the constitutional restrictions in a forum court’s choice of law?

Answer 20

Constitutional

1. Due process
2. Full Faith and Credit

Rule: constitution imposes a limit only if a state’s law is chosen that has no significant contact with and/or legitimate interest in the litigation.

Question 21

What are the statutory restrictions on a forum court’s choice of law?

Answer 21

Rule: if the forum state has a statute that directs a choice of law, then the forum court should apply that statute instead of the usual choice of law approach

Ex. borrowing statute

Question 22

What is the first paragraph for a choice of law answer?

Answer 22

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the [fill in applicable choice of law approach]

Question 23

What are the three approaches to a choice of law issue?

Answer 23

stock paragraph depending on whether it is

• vested rights (First Restatement
• interest analysis
• most significant relation (Second Restatement)

Question 24

What is the Vested Rights (First Restatement) approach to determining a choice law issue?

Answer 24

Under this approach, the court will apply the law of the state mandated by the applicable vesting rule. That rule is selected according to the relevant substantive area of law.

Note: the vesting rule is generally applied to the entire claim (each issue is not analyzed separately)

Question 25

What is the formula for paragraph three when there is a Vested Rights (First Restatement) state? (Choice of law)

Answer 25

Sentence 1: categorize the substantive area of law

2. State the applicable vesting rule
3. Apply the vesting rule to determine the governing law
4. Apply the governing law to determine the result

Ex. This is a torts case. Therefore, the applicable vesting rule is the place of injury. Here, the injury occurred in Michigan, and thus Michigan law applies. Under Michigan law, a non-paying passenger cannot recover against the driver, and so the claim is barred

Question 26

What is the Interest analysis (for purposes of choice of law approaches)? (paragraph 2)

Answer 26

“Under this approach, the court will consider which states have a legitimate interest in the outcome of the litigation. The forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of another interested state.”

Note: interest analysis is NOT sensitive to the substantive area at issue.

Question 27

What is paragraph 3 of an interest analysis essay, when there is a false conflict?

Answer 27

1. Which states have legitimate interests
2. Characterize the type of conflict: false conflict - only one state has a legitimate interest, or cares to have its laws applied
3. Apply the law of the interested state
4. Apply governing law to determine outcome

Question 28

What is paragraph 3 of an interest analysis essay, where there is a true conflict?

Answer 28

1. Which states have legitimate interests
2. Characterize the type of conflict - two or more states have a legitimate interest
3. Choose - if the forum is interested, apply forum law
4. Apply governing law to determine outcome

Question 29

What is the Second Restatement (“most significant relationship” approach to determining a choice of law issue? (paragraph 2)

Answer 29

Under this approach, the court will apply the law of the state which is most significantly related (key language) to the outcome of the litigation. TO determine this, the court will consider connecting facts (where) and policy principles (why)

Note: each issue must be analyzed separately.

Question 30

What is paragraph 3 of a choice of la essay, when state uses second restratement/most significant relationship

Answer 30

1. Connecting facts
2. Policy principles
3. Choose governing law
4. Apply governing law to determine result

Question 31

What is the vesting rule governing torts under the First Restatement (vesting rule), for purposes of choice of law issues?

Answer 31

Lex loci delicti: the governing law is the law where the injury occurred.

Question 32

What are considerations in a Torts case when the state applies Second Restatement (most significant relationship) approach to determining choice of law?

Answer 32

Considerations:
1. Factual connections (place of injury, place of conduct causing injury, place where parties are from, place where relationship - if any - is centered).

2. Policy principles (relevant policies of the forum state or any other connected states)

Question 33

What are the exceptions to the general rule that the governing law will almost always be the law of the place of injury, in a choice of law question involving torts?

Answer 33

1. Rule at issue is a loss distribution rule (conduct-regulating rule)
   Ex. loss limitation (damage gaps)
   Ex. vicarious liability rules
   Ex. elimination of liability rules (immunity rules)
2. Common domicile

Question 34

What are is the choice of law rule governing contracts?

Answer 34

A choice of law provision will be enforced if it is valid and express.

Impact: if the choice of law provision is enforced, the provision displaces the choice of law analysis that the court would otherwise perform. Conversely, if the choice of law provision is rejected, the court should then conduct a choice of law analysis.

If in doubt, find the provision invalid.

Question 35

When will a choice of law provision be held invalid, in a contracts issue?

Answer 35

1. The law selected has no reasonable relationship to the contract (ex. OH and IN contract, laws in PA).
2. Provision was included without true mutual assent (e.g. material misrepresentation of the chosen state’s law)

Question 36

What are the First Restatement’s vesting rules regarding contracts?

Answer 36

Rule 1: if the case is about formation, apply the laws of the place of execution or contracting
Ex. capacity to contract, formalities of K, sufficiency of consideration.

Rule 2: if the case is about performance, apply the law of the place of performance.
Ex. time/place/manner, excuses for nonperformance

Question 37

What are Second Restatement considerations w/r/t contracts cases?

Answer 37

Factual connections (place of K, negotiation, performance, where parties at home, where parties filed)

Policy principles (relevant policies of forum state and other connected states, reasonable expectations of the parties)

Question 38

What are the choice of law rules re: property, when the case involves immovable (real) property?

Answer 38

Apply the law of the situs

Question 39

What are the choice of law rules re: property, when the case involves movable (personal) property?

Answer 39

Rule 1: if the case involves an inter vivos transaction, apply the law of the situs at the time of the transaction.

Rule 2: if the case involves a matter relating to inheritance, apply the law of the decedent’s domicile at the date of death

Question 40

What are the choice of law rules re: marriage?

Answer 40

Rule: if a marriage is valid where performed, it will be recognized as valid everywhere.

Exception: when domiciliaries of one state temporarily relocate to another state to perform a marriage that violates a prohibitory rule in their home state, the state of domicile will not recognize the marriage.
Note: a prohibitory rule is one that expresses a strong public policy re marriage (as vs directory rules, which are administrative in nature)

Question 41

What are the choice of law rules re: divorce?

Answer 41

Rule: the forum will apply its own divorce laws. To acquire jdn in a divorce, at least one of the parties must be domiciled in the state.

Question 42

What are the choice of law rules re: legitimacy?

Answer 42

Rule 1: the legitimacy of a child is governed by the law of the mother’s domicile at the time of the child’s birth

Rule 2: the validity of subsequent acts of legitimation are governed by the law of the father’s domicile.

Question 43

What is the public policy defense to a choice of law issue?

Answer 43

A forum court will not apply a law that is against its own fundamental public policy.

This rule does not apply to the recognition of judgments.

This rule appears in both Restatements, but practically is most applicable to First Restatement (vesting rights) issues.

Question 44

What is the procedural rules defense to a choice of law issue?

Answer 44

Regardless of the outcome of the choice of law analysis, the forum will always apply its own procedural rules.

Question 45

What are the rules re choice of law and application of statutes of limitation

Answer 45

Traditional rule: SOL have been viewed as procedural issue, and therefore the forum state would just apply its own laws

Modern rule: Treat as substantive issues, and apply the SOL of the state selected through the state’s choice of law approach

Exception 1: borrowing statutes
Exception 2: limitations that condition a substantive right

Question 46

What is a borrowing statute?

Answer 46

Borrowing statutes direct a court to look at both the forum limitigation period and the foreign limitations period (in cases where foreign law governs under a normal choice of law analysis), and then to apply to apply the SHORTER period.

Question 47

What is a limitation that conditions a substantive right (exception to the SOL rule)?

Answer 47

If the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, then apply the entire statute, including SOL.

Ex. the creation of the substantive right to a wrongful death suit, which includes a 1-year SOL.

Question 48

What is domicile by choice?

Answer 48

An individual with physical presence and intent to remain indefinitely

Notes:

• Intent may be showed by getting license, opening bank account, renting apartment
• Even fleeting presence is sufficient if combined with clear intent
• Keep old domicile until physically present in new domicile (even if you die on the way to moving)

Question 49

What is domicile by operation of law?

Answer 49

Rule: individual who lacks domicile capacity is assigned one by law.

1. Children (newborns assigned domicile of parents, divorced kids go w/ custodial parent)
2. Mental incompetents (domicile of parent, retains chosen domicile if become incompetent after choosing)