Conflict of Laws Flashcards
Domicile Generally
The most important way the law connects a particular person with a particular jurisdiction or state. Person can have ONLY ONE domicile
Domicile by choice
Person must (1) abandon previous domicile, (2) establish a physical presence in the chosen domicile, and (3) show an intent to remain for an indefinite time–shown by persons actions and statements as a whole
Domicile by Law
Law establishes domicile for persons who lack capacity for proper intent. Ex: children taken domicile of parents. Ex: Corporations domiciled in state of incorporation, but other facts can prove relevant
Choice of law issue arises when
the law of more than one jurisdiction arguable applies to same set of facts
Forum State
the state in which the lawsuit is brought
Forum Law
Law of the forum state
Vested Rights/Traditional Approach (1st Rest.)
Each state determines the legal effect of all events, but only those events that occur within its territory.
Legal right becomes vested under law of the state where it occurrdd as soon as it occurs. A right vests when the last act takes place that is necessary to give the plaintiff a cause of action.
Government Interest Analysis
- A law applies to a set of facts if its application to those facts would promote the policies and purposes underlying the law
- if application of law to the facts of the case is consistent with the purpose and policy, the state is said to be interested in the case
Types of of Government Interest Conflicts
Presumption that the forum state will apply its own law. Parties may request that another state’s law be applied because other state has greater interest.
(1) False Conflict-Forum has no interest–apply more interest law
(2) True Conflict–review forum policies to determine which law should apply. If true conflict that can’t be resolved, forum wins
(3) Disinterested Forum
When is a state interested in applying conduct regulating laws
when the wrongful conduct occurs within the territory or when a state domiciliary is injured anywhere
when is a state interest in applying loss shifting laws
when doing so would benefit a state domiciliary
Significant Relationship Test (2nd Rest)
Apply the law of that state that has the most significant relationship, consider if application furthers the policies of the states, systemic interests such as predictability and simplicity, and whether justified expectations of the parties will be protected. If unclear which has a more significant interest, apply the law of the forum state.
Depecage
When different states laws apply to different issues in a case. Not allowed under the vested rights approach.
Renvoi
Court applies the law of another state, the ‘whole law,’ including COL rules. Generally rejected because infinite cycle problem. Used in property rights.
Traditional Approach-Torts
The case is governed by the law of the place where the last event necessary to make the actor liable for the tort took place
Government Interest- Torts
The forum state generally looks to its own law, so long as that state has a legitimate interest in applying its own law
-Another states law would be applied if a party requests such an application and the forum court determines that the other states law should apply in accordance with the forum states policies
Most Significant relationship- Torts (2nd restatement)
- Policy principles are applied to determine the applicable substantive law.
- Court considers the place of the injury, the place where he conduct causing the injury occurred, the domicile, residence, etc, and the place where the relationship is centered
- default rule–the place of injury controls unless another state has a more significant relationship
Express Provision–K’s
Express COL provision governes, unless
- it is contrary to public policy
- there is no reasonable basis for the parties choice, or
- true consent was not given because of fraud or mistake
Vested Rights-Ks
the applicable law depends on either where the k was executed or where it was to be performed
Most Significant Relationship- Ks (2nd rest
Policy factors considered along with: location of contracting, negotiation, and performance, place where ks subject matter located, location of parties domiciles etc
PRESUMPTION: if location of negotiation and performance are the same, the law of that state presumptively applies
Types of Property
Movable and Immovable
Immovable Property
Land and Interest in land. Under all three approaches, issues concerning immovable properties are governed by the whole law of the place where property located
INCLUDES: the whole law, rules of the situs (Renvoi generally accepted)
Movable Property
Divided into tangible and intangible
Tangible Movable Property
The UCC allows parties to choose which law governs and fills the gaps if they do not. First and Second Restatements: Apply the law of the state where the property were/was located at the time of the transaction.
Intangible Movable Property
First Restatement: Apply the law of the state in which the intangible property was created.
Second Restatement: Look to the seven guiding factors.
Succession of Property at Death
Under both 1st & 2nd Restatements–issues concerning immovable property at death are governed by the law of the situs
Issues concerning movable property are governed by the law of decedents domicile at time of death
Corporations COL
Divided into Internal affairs and External Affairs
Internal Affairs
Concern the rights of the various actors within the venture itself. Governed by the law of the incorporation states.
External Affairs
Involve transactions with third parties who are outsiders to the corporate venture. Under both Restatements, corporation treated like a person.
Marriage–Traditional Approach
The validity of the marriage is governed by the law of the place where the marriage was celebrated
EXCEPTION: if the marriage violates a particularly strong public policy of the domicile of either party, the courts may refuse to recognize it
1st Restatement- Marriage
Makes a distinction between the validity of marriage and the incidents of marriage
2nd Restatement - Marriage
a marriage that was valid where it was celebrate will be valid everywhere, unless it violates a public policy of the state with the most significant relationship with the parties at the time of marriage
Marital Property
Any interest in property that one spouse acquires in the property of the other spouse by virtue of marriage other than an expectation of inheritance.
Immovable properties are governed by the whole law of the state where it is located.
Movable Property is governed by the law of the state where the couple was domiciled at the time the property was acquired.
Community Property remains community property, even if the property is moved to an non-community property state.
If marital funds or property are used by one spouse to acquire property in another state, the property that is acquired has the same character as the funds used to acquire it.
Pleading (Defenses against application of foreign law)
Traditional Approach: The laws of another state or country were not considered as law but as facts to be proven.
Modern Approach: Most states allow their courts to take judicial notice of the laws of other states.
Federal Courts: must take judicial notice of the laws of all 50 states but they require pleading and proof of foreign law
Defenses Against Application of Foreign Law
Types: Penal Law Exception Public Policy Exception Substance-procedure Distinction Borrowing Statutes
Penal Law Exception
Under all three general approaches, a court will not enforce the penal laws of another state. Laws that provide for civil recovery are not considered to be penal laws.
Public Policy Exception
A court may refuse to apply foreign law if that law violates a fundamental and strongly held public policy of the forum state.
If successful, the result is admiral w/o prejudice.
Can be used to reject a foreign cause of action, but not a foreign defense.
Substance-procedure distinction
procedural issues are always governed by forum law.
General Principle: substantive law regulates peoples behavior outside court, procedural laws regulate peoples behavior inside court
Parol evidence rule
this is a substantive rule. The purpose is to make sure that people in the real world reduce their contracts to writing.
privilege
first rest: the existence and validity of a privilege is considered to be a procedural issue–governed by forum law.
Second rest: the law of the state with the most significant relationship with the communication should apply. Bur, the second restatement has a strong presumption in favor of the law that would allow admission of the evidence.
Damages
First Rest: Treats as substantive, but statutory caps are considered procedural.
Second Rest: Governed by the law of the state w/ most significant relationship to the issue
(However, a damage cap is a loss-shifting rule to protect Ds, thus under interest analysis, a state will generally apply its own damage caps only to protect a D from that state)
Statute of Limitations
First Rest: Considered procedural unless the statute of limitations is inextricably bound up with a substantive right, in which case they are considered substantive
Second Restatement: Generally, forum applies its own statute of limitations if it would bar the claim. If it would permit the claim, it should apply unless: maintenance of the claim would serve no interest of he forum, the claim would be barred under the SOL of a state having a more significant relationship with the issue
Borrowing Statutes
Bar suits on foreign causes of action that are precluded under either the forum statute of limitations or the statute of limitations of the place where the cause of action arose, whichever is shorter
Constitutional Limitations on Choice of Law
A state may apply its own substantive law to an issue only if the state has a significant or a significant aggregation of contacts with the issue such that application of its own law is neither arbitrary nor funadamentally unfair
Rule enforces both Due Process Clause and Full Faith and Credit Clause
Forum state is entitled to apply its own procedural law to any issue that is traditionally viewed as procedural
Under Full Faith and Credit Clause, a state may not refuse to entertain claims under another state’s law simply because that law comes from another state.
The Constitution does not require state courts to respect the sovereign immunity of sister states (although they typically do through the Comity Clause)
The Erie Doctrine
Federal Courts exercising federal question jurisdiction always apply federal law
Federal Courts exercising diversity jurisdiction must apply the substantive law of the state in which they sit
Substantive Law
Any law that defines the legal rights and obligations of the parties (e.g. elements of a claim, elements of a defense, burdens of proof)
Statutes of limitations are substantive for Erie purposes because they are outcome determinative
A state law is substantive if it is outcome determinative in a direct and certain way so that it encourages forum shopping between the state and federal courts
Procedural Law
Apply only in state courts. Federal courts only apply federal rules of civil procedure
If a codified federal rule (FRE or FRCP) applies directly to the issue in question, then it must be applied in federal court
Klaxon Rule
A federal district court in a diversity case must apply the choice-of-law rules of the state in which it sits
EXCEPTION: if a diversity case was properly filed in a federal court in one state, but then transferred to a federal court in another state pursuant to the Federal Venue Statute, then the choice-of-law rules of the first state apply
Full faith and credit
a judgment from another state must be given the same effect in the enforcing state as it would have been given in the rendering state
Preclusion
Claim/Issue: For a judgment to have preclusive effect, the judgment must have been valid, final, and on the merits
Note: There is no public policy defense to enforcing the judgment of another state
Last in Time Rule
If a valid, final judgment is inconsistent with another valid, final judgment, the most recent judgment is entitled to full faith and credit
Valid Judgment
one rendered by a court with proper jurisdiction.
Even erroneous judgments may be considered valid. Judgments involving EXTRINSIC fraud are not valid.
Final Judgment
no outstanding appeals; the judgment is not modifiable
On the Merits
substantive issues were decided by a court
Workers Compensation
If an employee gets an award in State A, he can still get a supplemental award in State B, unless the language of State A bars additional recovery using unmistakable language to that effect
Divorce Decrees
A divorce is a judgment
For a state to grant a divorce, at least one spouse must be domiciled in that state
Two types:
1) bilateral
2) ex parte/unilateral
Bilateral Divorce
If court has personal jurisdiction over both spouses, the divorce is called a bilateral divorce decree
All of the court’s decrees related to the divorce will be entitled to full faith and credit
Unilateral Divorce/Ex Parte
If the court has jurisdiction over one party and not the other, that is called ex parte/unilateral
The party seeking ex parte divorce must establish domicile
Ex parte divorces are entitled to full faith and credit, even though there was no personal jurisdiction over the absent spouse
The enforcing state does not have to five full faith and credit to the divorcing state’s determination of domicile
The rule only applies to the divorce decree itself - “divisible divorce doctrine”
Child Support and Custody Decrees
Child support orders are modifiable (they are not final)
UCCJEA: one state gets exclusive jurisdiction to make an initial custody decision (usually the child’s home state)
All other states must give full faith and credit to that decision
The decision can be modified in a different state only if:
1) the original state no longer has a significant connection to the child or part; OR
2) the court satisfies the initial requirements for exclusive jurisdiction (child’s new home state)
Foreign Country Judgment
Not subject to full faith and credit
Usually enforced as a matter of comity (mutual respect)
In some cases, American courts have refused to enforce foreign country judgments where the underlying law was truly repugnant to the state’s public policy
Most states have adopted the Uniform Foreign Money Judgment Recognition Act: non-money judgments are not covered by the statute but are usually enforced by the states
