Conflict of Laws Flashcards
What are the three steps to a full faith and credit analysi for state court judgments?
(1) have the full faith and credit requirements been met?
(2) are there any defense tot full faith a credit?
(3) what are the effects of recognizing a sister state judgment and who will be bound by it?
What are the full faith and credit requirements?
(1) there must have been proper juristion (subject matter and parties) in the rendering court;
(2) the judgment must be on the merits;
(3) the judgment must be final
Whose law applies in determining whether the fill faith and credit requirements have been met?
The law of the state that rendered the judgment
What is the bootstrapping doctrine?
If the question of jurisdiction was fully and fairly litigated in the original action, that determination itself is res judicata and entitled to full faith and credit even if erroneous
When is a judgment not on the merits for a defendant?
If it is based on
(1) lack of jurisdiction over the defendant;
(2) plaintiffs lack of capacity to bring suit
(3) misjoinderof parties of causes of action;
(4) improper venue;
(5) or time bars such as the statute of limitations
Are default and consent judgments deemed to be on the merits for full faith and credit purposes?
True
If a 12(b)(6) is granted for the plaintiff’s failure to state a claim, is that determination on the merits for full faith and credit purposes?
Yes, if the plaintiff cannot amend to allege a cause of action
What is a final judgment for full faith and credit purposes?
Finality refers to whether any further judicial action by the rendering court is necessary to resolve the litigation
What are sufficient defenses to full faith and credit?
(1) the judgment is a penal judgment; AND
(2) the judgment is subject to an equitable defense in rendering state
What is as penal judgment?
Judgment punishing an offense against the public
What defenses are insufficient to bar application of full faith and credit?
(1) tax judgment;
(2) judgment is contrary to public policy of the enforcing state;
(3) the rendering court made a mistake of law or fact
What is the effect of recognition of sister state judgment?
Res judicata will apply:
(1) plaintiff’s cause of action will merge into the judgment;
(2) bar against the plaintiff suing on the same cause of action when the judgment favored the defendant;
(3) collateral estoppel as to an issue resolved in the first litigation as long as the issue is actually litigated in the prior proceeding and is essential to the first suit’s outcome
Must a judgment entitled to full faith and credit be enforced if erroneous?
Yes, as long as the error does not establish a sufficient defense
Whose law governs the enforcement of a judgment entitled to full faith and credit?
The law of the enforcing state
Are judgments of admistrative tribunals entitled to full faith and credit?
Generally, yes
Does the full faith and credit clause of the constitution apply to the federal courts?
No, but it has been made applicable to them by statue
Is recognition required between state and federal courts? Between two federal courts?
Yes, Yes
What principle requires US recognition of judgments by foreign countries?
Comity
Is recognition under comity discretionary or mandatory?
Discretionary
Are states allowed to adopt a reciprocity requirement when recognizing foreign judgments under the commit principal?
Yes
What do courts look to in order to decide whether to recognize a foreign court judgment under comity?
(1) the foreign court must have had jurisdiction; AND
(2) fair procedures were used
Are divorce decrees of sister states entitled to full faith and credit?
Yes as long as there was jurisdiction
NOTE: jurisdiction is proper when the judgement is rendered in a jurisdiction where one of the spouse is domiciled
When a plaintiff files an action for ex parte divorce, there is a _______ presumption that the place the action is filed is her domicile.
Rebuttable
Will there be jurisdiction over a consent (or ex parte) divorce if both parties enter an appearance and consent to the proceedings, but neither is domiciled in the jurisdiction?
No
What is a bilateral divorce?
Divorce where the granting jurisdiction has personal jurisdiction over both parties and at least one party is domiciled in that jurisdiction.
Who may attack a divorce decree of another state.
Generally any interested party
Who is barred from attacking another state’s divorce decree?
(1) parties to prior proceedings;
(2) privies of the parties;
(3) persons who accept a foreign divorce and remarry in reliance thereon
NOTE: but a stranger cannot attack the validity of a divorce if they would lack standing to bring the suit
Will determinations as to custody, alimony, property rights be conclusive in a bilateral divorce? In an ex parte divorce?
Generally: Yes, No
Can a court granting an ex parte divorce ever adjucate property rights or custody of children?
Yes:
Property if the property is located within the forum state if the state has sufficient minimum contacts with the defendant and the property
Custody: under the UCCJEA, an ex parte child custody determination is enforceable if the rendering state qualifies as the child’s home state
Will federal courts extend comity to foreign country divorce judgment?
Yes if the domicle requirement is met
May an individual have more than one domicile?
No
How may a domicile arise?
(1) by choice;
(2) by operation of law
What are the requirements for domicile of choice?
(1) physical presence; AND
(2) intention to be domiciled
May a new domicile be acquired in a very short time?
Yes as long as intent is met
Will a change in domicle be valid if the motive for changing is to gain a litigation advantage?
Yes, motive is irrelevant as long as the intent requirement is met
Whose domicile arises by operation of law?
Those who lack capacity:
(1) children’s and
(2) incompetents
Where is a child domiciled?
Domicile of custodial parents applies
Where is an incompetent domiciled?
Domicile of parents, or former domicile
Where is a corporation domiciled?
In its state of incorporation
What constitional provisions apply to limit choice of law?
Due process and full faith and credit
When will a state be constitutionally required to apply the law of a foreign state?
(1) the state has no significant contact with the parties or subject matter
NOTE: state will not be required to apply foreign jurisdictions penal laws or tax claims
May a state enact statutes direct it as to what law must be applied in a given case?
Yes
May federal law Preempt a state from taking jurisdiction over certain subject matters?
Yes
What are the three main analytical approaches to choice of law?
(1) the vested rights approach of the First restatement
(2) the most significant relationship approach of the secon restatement; AND
(3) the interest analysis (governmental interest) approach
What analytical steps are taken in the vested rights approach?
(1) characterize the area of substantive law;
(2) determine the particular choice of law rule;
(3) localize the rule to be applied
What analytical steps are taken in the most significant relationship test?
(1) consider the connecting facts: the specific contacts with each jurisdiction;
(2) consider the policy-oriented principles
What are the policy-oriented principles to be considered in the most significant relationship test?
(1) relevant policies of the forum;
(2) policies and interest of other jurisdictions;
(3) basic polices underlying substantive law;
(4) predictability and uniformity of result
(5) needs of interestate systems;
(6) expectations of the parties;
(7) ease of determination of foreign law
NOTE: always mention the first 4 on an essay!
What analytical steps are taken in the interest analysis approach?
(1) Assume that the forum will apply its own law unless required to apply another
(2) if requested, check for false conflict (if a false conflict, then apply the law of the only interested state)
(3) If true conflict, the forum will apply its own law
(4) If there is no interest state, the forum will apply its own law
Does the analytical approach in the vested rights analysis change based on the areas of substantive law involved?
Yes
Does the analytical approach in the most significant relationship test change based on the areas of substantive law involved?
Yes
Does the analytical approach in the interest analysis change based on the areas of substantive law involved?
No
What substantive law will apply in a tort action under the vested rights approach?
The law of the place of the wrong (i.e. the injury)
What substantive law will apply in a trot action under the most significant relationship approach?
The place of injury is most important:
(1) the place where the conduct causing the injury occurred;
(2) the domicile, residency, nationality, place of incorporation, and place of business of the parties, and the place where the relationship of the parties (if any) is centered;
(3) consider the 7 policy oriented principles
True or false: if a question involves speed limits, the court will apply the speed limit law from the place of the injury regardless of which analytical approach is used
True
True or false: if the tort injury occurs in more than one state, under the majority rule the law of plaintiff’s domicle is applied (assuming the injury also occured there)
True
True or false: generally states seek to apply their own workers compenstaion statute in cases where they have jurisdiction
True
What factors will a court look to to determine if it has jurisdiction in a worker’s compensation
(1) the employment contact was entered into in the state
(2) the injury occured in the state;
(3) the employee resides in the state
(4) the employment relationships was performed in the state
NOTE: a choice of law provision in the employment contract will prevail
What is the first consideration in a choice of law problem involving a contract>?
Is there a choice of law provision in the contract?
When will a choice of law provision be upheld?
It will be upheld unless:
(1) it is contrary to public polic;
(2) there is no reaonable basis for the parties choice;
(3) true consent was not given (fraud, mistake, adhesion contracts)
If there is no valid choice of law provision, in a contract action, what law will apply under the vested rights approach?
The place where the contract was made controls as to problems with validity and construction;
The place where the contract is to be performed governs issue relation to performance
If there is no valid choice of law provision, in a contract action, what law will apply under the most significant relationship test?
You look to the 7 factors; PLUS
(1) the place of contracting, negotiation, and performance
(2) the location of the contract subject matter
(3) domicile
NOTE: if if the place of negotiation and performed are the same, that law will generally be deemed most significantly related.
True or false: land contracts are controlled by the law of the situs.
True
What are land contracts?
Those that create or transfer an interest in land
If the capacity of a party to a contract is at issue, what law applies in a vested rights approach?
the place of contracting
If the capacity of a party to a contract is at issue, what law applies in the most significant relationship test?
The law of the place where the party whose capacity is in question is domiciled
In relation to marriage, what is a directory rules?
Directory rules include rules requiring a marriage license , parental consent, and certification of blood test
If a marriage is valid where celebrated, but a directory rule is violated under the law of a state that a party is domiciled, what result?
The marriage is upheld (i.e. it is not rendered invalid by the violation)
If a marriage is valid where celebrated, but a prohibitory rule is violated under the law of a state that a party is domiciled, what result?
It renders the marriage invalid in the domicile, even though it was valid when entered into
What is a prohibitory rule?
Generally, those that express the strong public policy of the state, e.g. rules against incent, polygamy, and marriage under a minimum age
What law applies in an action for annulment?
The law of the place where the marriage was celebrated
NOTE: modern trend to apply the law of the state with the most significant relationship to the marriage
What law applies in an action for divorce?
The law of plaintiff’s domicile
What law applies in an action to enforce a premarital agreement?
The law of the place where the agreement is entered into or the state with the most significant relationship to the parties and the transaction
If a choice of law question regarding matters of internal coronation affairs arises, what law applies under the vested rights approach?
The place of incorporation
If a choice of law question regarding matters of internal corporate affairs arises, what law applies under the most significant relationship test?
The place of incorporation
Under either the vested rights or most significant relationship test, what law will apply in a question of testamentary intent to convey personal property
Domicile of the owner at the time of death
Under either the vested rights or most significant relationship test, what law will apply in a question of inter vivos intent to convey personal property?
Sites of the property at the time of the relevant transaction
What three arguments must be considered as a defense to the application of foreign law?
(1) is the law procedural?
(2) is the law against he forums public policy?
(3) is the law a penal or tax law?
What law is used to apply whether a law is sub native or procedural?
The law of the forum
True or false: a forum will always apply its own procedural law
True
What rules are generally procedural?
(1) civil practice rules in general
(2) burden of proof in general
(3) rebuttable presumptions
(4) statues of limitations
(5) direct action statutes
(6) ability to bring counterclaims
(7) privileges
What rules are generally substantive
(1) civil practice rules that would change outcome
(2) irrebiuttable presumptiosn
(3) statues of limitations that condition a substantive right or limit a contractual right, and borrowing statutes
(4) statute of frauds
(5) parol evidence rule
(6) contribution among joint tortfeasors
(7) survival of actions
(8) adverse possession
(9) damages
In an interest analysis, may a party raise the defense that foreign law is against public policy?
No it is incorporated into the main analysis
Is it a valid defense that a foreign states law was a tax or penal law?
Under the vested rights approach, yes
Under the most significant relationship test: only penal laws seem to be prohibited
True or false: most states reject renvoi
True
