Conflict of Laws

Question 1

Domicile

Answer 1

1. Domicile by Choice

If a person has legal capacity, then the person’s domicile is the location where he has chosen to establish domicile. In general, domicile will be where the person is present with the intent to remain for an unlimited time and when he abandons any prior domicile. Thus, courts will look at the person’s physical presence and intent to determine a person’s domicile.

a. Physical presence

Actual physical presence in the location is required to establish the location as the person’s domicile. The person, though, need not be present for any specific amount of time to establish domicile, so long as the amount of time is coupled with the intent to establish domicile.

b. Intent

To establish a location as the domicile, a person must demonstrate, in addition to physical presence in a location, the intent to make the location his home for the time being, or the absence of an intent to go elsewhere. Presence under compulsion, such as a person in prison, will not establish domicile by choice.

Question 2

Domicile of Infants and Incompetents

Answer 2

a. Infants

Infants (i.e., minor children) are domiciled where their custodial parents are domiciled. If a child is emancipated, then the child may establish her own domicile.

b. Incompetents

A person lacking the mental legal capacity to choose a domicile will retain her parents’ domicile. If the person once had legal capacity, chose a domicile, and then lost legal capacity, then her domicile remains the place where she was domiciled before losing capacity.

Question 3

Continuity of Domicile

Answer 3

Once established, a domicile is presumed to continue until a new domicile is acquired. The burden of showing a change in domicile is on the party that asserts it. Temporary or even prolonged absences will not, by themselves, result in a change of domicile. Thus, a domiciliary of one state can live in another state for years and retain his domicile in the original state, so long as he intends to return to that state. An old domicile by choice continues even though a new residence is established until there is the intention to create a new domicile.

Question 4

Limitations on Choice-of-Law

Answer 4

Due Process: a forum state may apply its own law to a particular case only if it has a significant contact or significant aggregation of contacts with the state such that a choice of its law is neither arbitrary nor fundamentally unfair.

Full faith and credit: The Full Faith and Credit Clause requires a forum state to apply the law of another state when the forum state has no contacts with or interest in the controversy, but it does not prevent the forum state from applying its own law when the forum has such contacts or interest in the controversy.

In addition, the Full Faith and Credit Clause does not require a state to apply another state’s law in violation of its own legitimate public policy.

Question 5

UCC Choice-of-Law

Answer 5

Uniform Commercial Code (UCC) contains choice-of-law provisions that require a forum state to apply the UCC if the state has a reasonable relationship to the transaction.

Question 6

Federal Choice-of-Law Statute

Answer 6

Certain federal statutes may preempt a state from claiming jurisdiction over certain cases. For example, federal courts are given exclusive jurisdiction in patent, antitrust, and bankruptcy matters.

Question 7

Contractual Choice-of-Law Enforcement

Answer 7

Most courts will enforce a contractual choice-of-law provision if it is:

i) A valid agreement with an effective choice-of-law clause;
ii) Applicable to the lawsuit under the terms of the contract;
iii) Reasonably related to the lawsuit (i.e., the law to be applied is from a state with connections to the parties or the contract); and
iv) Not in violation of the public policy of the forum state or another interested state.

Question 8

Vested-Rights Approach

Answer 8

Look to act or relationship giving rise to claim. Generally, this approach looks for the location where the last liable event took place.

Question 9

Most significant relationship approach

Answer 9

7 policy principles:

1. Needs of the interstate or international system (judicial efficiency, facilitating agreement)
2. Relevant policies of the forum
3. Policies of interested states.
4. Party expectations (only for planned transactions)
5. Policies underlying substantive areas of law
6. Certainty, predictability, and conformity
7. Ease of future application

Prof’s three guiding principles:

1. Promoting relevant policies of the forum and other interested states.
2. Protecting systemic interests - certainty, uniformity, predictability, simplicity
3. Protecting justified expectations of the party

Question 10

Government-Interest Approach

Answer 10

Presume that the forum will apply its own law, but parties may request the law of a different state; if they do, determine whether there is a conflict.

False conflict: happens when forum has no interest in the litigation; apply the law of the state that does have an interest.

If true conflict: Forum state reviews own policies to determine which should apply. If conflict cannot be resolved, use forum state.

States have an interest in applying their conduct-regulating laws (i.e., laws designed to regulate conduct) when the wrongful conduct occurs within their territory or when a state domiciliary is injured. States have an interest in applying their loss-shifting laws (i.e., immunize people from liability) when doing so would benefit a state domiciliary.

BUT ALSO: If forum state has no interest in applying own laws and forum non conveniens is available, should dismiss. Factors: (i) the availability of an alternative forum, (ii)the law that will apply, and (iii) the location of the parties, witnesses, and evidence.

Question 11

Depecage

Answer 11

Modern approaches to choice of law require the forum court to consider separately which state’s law should govern for each substantive issue if the issue would be resolved differently under the law of two or more potentially interested jurisdictions. This approach, which can allow the law of one state to govern one or more particular issues while still other issues are controlled by the law of one or more other states, is known as dépeçage.

Question 12

Renvoi

Answer 12

The doctrine of renvoi requires that a forum court that is applying the law of another state to decide a matter also apply that foreign state’s conflict-of-laws rules. Such rules might require the forum state to refer to its own law (this is known as remission) or to the laws of another state (this is known as transmission). Theoretically, this could result in a vicious circle with no state’s internal laws being able to be applied.

All three approaches reject, but courts generally accept the renvoi in property rights disputes.

Question 13

Federal Tort Claims Act

Answer 13

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), requires application of the whole law, including the conflict rules, of the place where the act or omission occurred. See Richards v. United States, 369 U.S. 1 (1962). Thus, the forum will refer to the place where the act or omission occurred and then apply the conflict-of-laws rules of that state.

Question 14

Torts Rules

Answer 14

Vested Rights Approach: Governed by the law of the place where the wrong was committed (look to last event necessary to give rise to the claim, usually injury)

MSI Approach: Apply 7 principles. Consider: (i) the place of the injury, (ii) the place where conduct causing injury occurred, (iii) the domicile, residence, place of incorporation, or place of business of the parties, and (iv) the place where the relationship is centered. In tort matters, the default rule under the Restatement (Second) of Conflict of Laws approach is that the place of injury controls, unless another state has a more significant relationship to the parties or to the occurrence of the tort.

GI Approach: Under the governmental-interest approach, the forum state generally looks to its own law, so long as that state has a legitimate interest in applying its own law. Another state’s law would be applied if a party makes a request for such application and the forum court determines that the other state’s law should apply in accordance with the forum state’s policies.

Question 15

Contracts

Answer 15

FIRST: Look to whether an express choice-of-law provision applies in the K.

VR Approach:
Place of execution generally governs issues regarding validity, defenses, and interpretation.

Place of performance governs details of performance such as time and manner of performance, person obligated to perform, sufficiency of performances, and excuses for non-performance.

MSR Approach:
Consider 7 principles, PLUS i) The location of the contracting, negotiation, and performance; ii) The place where the contract’s subject matter is located; and iii) The location of the parties’ domiciles, residences, nationalities, places of incorporation, and places of business.

When place of performance and place of execution are the same, generally will apply that.

Plus default rules, unless another state found to have more significant relationship.

GI Approach:
The governmental-interest approach does not change based on substantive areas of law.

Question 16

Choice-of-Law Provision in K

Answer 16

If there is an express choice-of-law provision in the contract, then that law will govern unless:

i) It is contrary to public policy;
ii) There is no reasonable basis for the parties’ choice; or
iii) There was fraud or mistake and true consent was not given.

Question 17

Ks, MSR Approach Default Rules

Answer 17

i) Land contracts are controlled by the law of the state of the situs of the land;
ii) Personalty contracts are controlled by the law of the state where the place of delivery is located;
iii) Life-insurance contracts are controlled by the law of the state where the insured is domiciled (see § I Domicile, supra, for a discussion of the rules regarding domicile);
iv) Casualty insurance contracts are controlled by the law of the state where the insured risk is located;
v) Loans are controlled by the law of the state where repayment is required;
vi) Suretyship contracts are controlled by the law of the state governing the principal obligation; and
vii) Transportation contracts (covering both persons and goods) are controlled by the law of the state where the place of departure is located.

Question 18

UCC

Answer 18

The UCC generally governs most issues involving the sale of (or security interests in) tangible personal property. Under the UCC, the parties may stipulate to the applicable law that will govern the transaction or, in the absence of such stipulation, the forum state will apply its version of the UCC “to transactions bearing an appropriate relation to” the forum state. UCC §1-301. If a particular code provision specifies the applicable law, a contrary agreement is effective only to the extent permitted by the law (including the conflict-of-laws rules) so specified.

Question 19

Property

Answer 19

Apply UCC for tangible personal property.

TANGIBLE PROP:
VR Approach: the creation and transfer of interests in tangible personal property are governed by the law of the state in which the property was located at the time of the transaction at issue.

MSR Approach: Law of the situs, unless another state is shown to have a more significant relationship to the transaction

GI Approach: Does not change based on substantive areas of law.

INTANGIBLE PROP:
As noted above (see § II.C.2 Contracts, supra), under the UCC, the law governing the perfection, the effect of perfection or nonperfection, and priority of security interests in intangible collateral is generally the law of the state in which the debtor is located. UCC § 9-301.

VR Approach: Governed by the law where the intangible was created.

MSR Approach: Law of the state to which the transaction is most significantly related (7 principles)

Question 20

Real Property

Answer 20

Vested-rights approach

Under the vested-rights approach of the Restatement (First) of Conflict of Laws, the law of the situs of the real property governs legal issues concerning the title and disposition of real property and whether any interests in the property can be gained or lost.

Most-significant-relationship approach

Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the law of the situs of the real property is generally presumed to be most significant. (balance 7 principles)

GI Approach
Approach doesn’t change; but note this is the least dependent on the situs

Equitable Conversation Approach:
Some states apply the doctrine of equitable conversion, under which as soon as a valid contract is made for the sale of real property, the buyer is deemed the owner of the land, and the seller is deemed a trustee for the buyer. At the same time, the seller is deemed the owner of the money, while the buyer is deemed a trustee for the seller. Whether the doctrine of equitable conversion will apply to a transaction is governed by the law of the state in which the land at issue is located.

Question 21

Inheritance

Answer 21

PERSONAL PROPERTY: governed by the law of the decedent’s domicile at death

REAL PROPERTY: governed by the law of the situs

EQUITABLE CONVERSION: the application of the doctrine of equitable conversion is governed by the law of the state in which the land at issue is located.

Question 22

Corporations

Answer 22

Under the vested-rights approach of the Restatement (First) of Conflict of Laws, the law of the state of incorporation governs questions regarding the existence of the corporation (creation and dissolution) and issues about its structure, the rights of shareholders, and other internal corporate affairs. The Restatement (Second) of Conflict of Laws concurs in concluding that the law of the state of incorporation decides such questions

Question 23

Marriage

Answer 23

Marriages are valid where they took place and recognized in all other states unless it violates a particularly strong public policy of the domicile of either party (e.g., incest and bigamy)

A marriage that is valid in the state where it took place but that violates a prohibitory rule of the domicile of one of the parties will be void in the state where the marriage would have been prohibited if the parties immediately return to that state and become domiciled there.

Question 24

Annulment

Answer 24

Look to the law of the jurisdiction where the ceremony took place.

Question 25

Divorce and marital property

Answer 25

Questions of law relating to the grounds for divorce are controlled by the law of the plaintiff’s domicile in a divorce matter.

For issues regarding marital property already owned by either spouse at the time of the marriage, the law of the situs will control with regard to real property, while the law of the domicile will control with respect to personal property. For personal property acquired during the marriage, the law that controls is the law of the domicile of the parties at the time of the acquisition. For real property acquired during the marriage, the law that controls is the law of the situs of the real property. Note, though, that if marital funds or property are used by one spouse to acquire land in another state, then the land that is acquired has the same character as the funds or property used to acquire it. Thus, if a wife in a community-property state purchases a house in a separate-property state using community funds, the house will be community property and not separate property.

In determining the enforceability of a premarital agreement, most states apply the law of the state with the most significant relationship to the matter at hand.

Question 26

Legitimacy and Legitimation

Answer 26

The status of a child’s legitimacy at birth is governed by the law of the domicile of the parent whose relationship to the child is in question.

A child who was born illegitimate may, by force of law, become legitimate through the marriage of her parents or if the child’s parent acknowledges the child as his own. A child will usually be legitimate if this would be the child’s status under the local law of the state where either (i) the parent was domiciled when the child’s status of legitimacy is claimed to have been created, or (ii) where the child was domiciled when the parent acknowledged the child as his own.

Question 27

Adoption

Answer 27

A forum court will normally apply its own state law to determine whether to grant an adoption.

Question 28

Worker’s Compensation

Answer 28

GENERAL RULE: Generally, any state with a legitimate interest in an injury and is consequences may apply its workers comp act. In general (and this can vary depending on the state’s statute), a state will have a legitimate interest if it is the state where (i) the employment relationship was entered into by the worker and the employer, (ii) the injury to the employee occurred, (iii) the employment relationship principally occurred (even if the injury did not occur there), or (iv) the employee or the employee’s dependents reside.

K PROVISION: An employer and employee may agree as part of the employment contract that a certain state’s workers’-compensation laws will govern. Such agreement will generally be upheld so long as it is reasonable and does not violate the public policy of another state that has a legitimate interest.

MULTI-STATE RECOVERY: If more than one state is involved and has a legitimate interest, then each state’s workers’-compensation statutes should be compared before determining which law governs

A subsequent workers’-compensation award in another state is barred only if there is “unmistakable language by a state legislature or judiciary” barring such recovery. Industrial Commission of Wis. v. McCartin, 330 U.S. 622 (1947). Amounts paid under a prior award must be credited against any subsequent recovery in another state to avoid a double recovery.

IMMUNITY: The law is currently unclear as to whether an employee is permitted to bring a tort or wrongful-death action against an employer from whom the employee has already been awarded damages in a workers’-compensation action in another state if the workers’-compensation statute of the other state grants the employer immunity from tort liability. A plurality of the U.S. Supreme Court has held that a state may grant supplemental workers’-compensation benefits to an employee who previously received such benefits against the same person under another state’s workers’-compensation statute.

Question 29

Three objections to application of foreign law

Answer 29

1. ) Procedural, not substantive
2. ) Against public policy
3. ) Law is penal

Question 30

Substantive vs. Procedural

Answer 30

If procedural, forum law always applies. Apply forum state’s law to determine whether substance or procedure, unless result is not so arbitrary or unreasonable as to constitute a denial of due process or full faith and credit.

EXAMPLES:

i) The proper court in which to bring an action;
ii) The form of the action to be brought;
iii) The sufficiency of the pleadings;
iv) The effect of splitting a cause of action;
v) The proper or necessary parties to an action;
vi) Whether a counterclaim may be brought;
vii) Venue;
viii) The rules of discovery;
ix) The right to a jury trial;
x) Service of process;
xi) The burden of proof;
xii) Trial procedure; and
xiii) The methods of enforcing a judgment.

Question 31

Procedural vs. Substantive: existence/validity of a privilege

Answer 31

VR APPROACH: usually procedural, governed by the law of the forum state.

MSI: Normal balancing test (7 principles)

GI: Normal analysis.

Question 32

Procedural vs. Substantive: Evidence

Answer 32

Admissibility is usually procedural.

Question 33

P vs. S: Parol evidence

Answer 33

Questions regarding the application of the parol evidence rule are considered substantive and are controlled by the law of the state that governs the validity of the contract.

Question 34

P vs. S: SoL

Answer 34

Statutes of limitations are usually considered procedural, with the law of the forum state controlling. The theory for such treatment is that the statute of limitations bars the remedy but does not extinguish the underlying substantive right.

EXCEPTIONS:
If the statute of limitations limits a statutory right, as opposed to simply limiting a remedy, it will be substantive rather than procedural. Generally, a limitation period in a statute that creates a right, such as a wrongful-death act, will be treated as substantive.

If the statute of limitations vests as a result of prescription or adverse possession, it will be treated as substantive.

Most states have adopted “borrowing statutes,” which bar suits on foreign causes of action that are precluded under the shorter of the forum state’s statute of limitations or the statute of limitations of the place where the cause of action arose (for tort cases, the place of the wrong; for contract cases, generally the place where the contract was to be performed).

The most-significant-relationship approach of the Restatement (Second) of Conflict of Laws applies to statute of limitations issues. See § II.B.2 Most-Significant-Relationship Approach, supra. Under this approach, the forum will apply its own state’s statute of limitations barring the claim, unless (i)maintenance of the claim would serve no substantial interest of the forum, and (ii) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence. Restatement (Second) of Conflict of Laws § 142 (1988 Revision).

Question 35

P v. S: Statute of Repose

Answer 35

Statutes of repose limit the time within which an action may be brought, regardless of whether an injury has occurred or been discovered. It cuts off the right to a cause of action before it accrues. It is considered substantive rather than procedural, and it is controlled by the law of the state that governs the action under its choice-of-law rules.

Question 36

P v. S: Statute of Frauds

Answer 36

A Statute of Frauds is considered substantive rather than procedural. Questions regarding the Statute of Frauds are controlled by the law of the state that governs the validity of the contract. See § II.C.2 Contracts, supra.

Question 37

P v. S: Survival of Actions (past death of the plaintiff)

Answer 37

The issue of whether a tort action survives the death of the plaintiff is treated as substantive and is controlled by the law of the state that governs the action under its choice-of-law rules.

Question 38

P v. S: Damages

Answer 38

States are split as to whether the measure of damages is procedural or substantive. The majority rule is that damages are substantive and measured by the law that governs the subject matter from which the damages arise.

Question 39

Erie Doctrine

Answer 39

States are split as to whether the measure of damages is procedural or substantive. The majority rule is that damages are substantive and measured by the law that governs the subject matter from which the damages arise.

Question 40

Public Policy Objection

Answer 40

Both the Restatement (First) of Conflict of Laws and the Restatement (Second) of Conflict of Laws provide that if a foreign law violates the public policy of the forum state, then the forum court may refuse to apply that law. If the public-policy exception is applicable, then the court dismisses the action without prejudice. Public-policy concerns must be fundamental and strongly held, and the mere variance between the foreign law and the forum law is not enough to deny the application of the foreign law. The forum court must closely scrutinize the foreign law and the forum state’s public policy. Under the governmental-interest approach, this defense is not incorporated. Instead, the forum state will apply its public policy affirmatively in reaching a decision to apply its own law.

Question 41

Penal Laws

Answer 41

Both the Restatement (First) of Conflict of Laws and the Restatement (Second) of Conflict of Laws provide that a forum state will not enforce another state’s penal laws. For penal laws, only an actual criminal prosecution is prohibited, not a civil action involving monetary sanctions, which might otherwise be considered a penalty. The Restatement (Second) of Conflict of Laws specifically excludes wrongful-death actions and cases based on the statutory liability of officers, directors, and shareholders of corporations for debts from being considered penal in nature.

Question 42

Proof of Foreign Law

Answer 42

Historically, the laws of another state were not considered law at all but were treated as facts to be proven in court. If the law that controlled was not forum law, then the parties were required to carefully comply with the forum’s rules for pleading and proving foreign law. Such rules were procedural and governed by forum law. If neither party raised the applicability of foreign law in its pleadings, then forum law would generally be applied.

Most states today allow their courts to take judicial notice of other states’ laws and federal laws and treat them as law rather than fact. Some states allow judicial notice of the laws of a foreign country. Others require that they be proved as fact. By federal common law, federal courts must take judicial notice of the laws of all states. Lamar v. Micou, 114 U.S. 218 (1885). Federal law requires pleading and proof of foreign country law. See Federal Rules of Civil Procedure 44.1.

Question 43

Full Faith And Credit Clause Requirements

Answer 43

i) Have been brought in the proper jurisdiction;

NOTE that if the question of jurisdiction was fully and fairly litigated in the original case, such determination will itself be entitled to full faith and credit, even if it was wrong.

ii) Be finalized, with no appeals outstanding; and
iii) Be on the merits, meaning the substantive issues were decided by a court, rather than the matter being resolved by procedural issues such as improper jurisdiction, venue, or the statute of limitations. A judgment on the merits would include a judgment entered after full trial, a summary judgment, a judgment as a matter of law, and a default judgment.

Question 44

Defenses to FFC

Answer 44

a. Penal judgments

Penal judgments (cases in which the judgment is punishment for an offense against the public) do not have to be enforced.

b. Equitable defenses

Equitable defenses such as extrinsic fraud do not have to be enforced. Note that only extrinsic fraud cases, such as a misrepresentation of facts by a party or a party’s attorney that does not allow the case to be tried fully with all of the evidence, fall under this defense. Intrinsic fraud, such as perjured testimony, would not constitute a valid defense.

c. Inconsistent judgments

If there are inconsistent judgments between the same parties with regard to the same cause of action, then courts resolve this problem by recognizing the last judgment that was rendered.

d. Erroneous proceedings—no defense

A state may not refuse to recognize the judgment of another state because the other state made a mistake of fact or law. Such mistakes must generally be attacked on direct appeal of the original judgment.

Question 45

Res Judicata

Answer 45

If all of the Full Faith and Credit requirements are met, then the judgment is entitled to res judicata in other states as well as in the original state that decided the judgment. These effects include merger and bar.

a. Merger

If the judgment is final and the plaintiff won, then a merger of the plaintiff’s cause of action into the plaintiff’s judgment occurs. As a result, the defendant is prohibited from relitigating on the merits of the case.

b. Bar

If a judgment has been rendered and the final judgment is in favor of the defendant, then the plaintiff may not file another suit for that same cause of action in another state.

Question 46

Collateral Estoppel

Answer 46

Collateral estoppel eliminates the opportunity for parties to litigate an issue again in a subsequent suit. Collateral estoppel applies when:

i) The substantive issue of the case at hand was previously litigated;
ii) The issue was necessary to supporting the judgment in the initial proceeding; and
iii) The party against whom collateral estoppel will be applied was either a party in the original suit or had access to information from the original proceeding and had a full and fair opportunity to litigate the issue in the original suit.

Question 47

Comity, Judgments from Foreign Countries

Answer 47

In most cases, full faith and credit is not extended to cases decided in foreign countries, except in cases in which there are treaties agreeing to recognize certain judgments. U.S. courts have discretion to decide whether to recognize foreign country judgments. In deciding whether to recognize such judgments, the forum court will consider whether the foreign court had jurisdiction over the matter and whether the foreign court used fair procedures in deciding the case. If recognition of a foreign country judgment is granted, then the law of the state that is recognizing the judgment governs the method of enforcement.

Question 48

Uniform Foreign Money-Judgments Recognition Act

Answer 48

Many states have adopted the Uniform Foreign Money-Judgments Recognition Act. The act covers foreign judgments that grant or deny specific lump sums of money, but it excludes judgments for taxes, judgments for alimony or child support, and penal judgments.

Question 49

Recognition of Divorce Judgments

Answer 49

Divorce decrees from other states are entitled to full faith and credit as long as the original state had jurisdiction to issue the decree and the decree is valid in the original state. Decrees have proper jurisdiction if at least one person resides where the decree was issued.

1. Bilateral Divorce

If the court has personal jurisdiction over both spouses and at least one spouse is domiciled in the state, then the divorce judgment will be a valid bilateral divorce and will be entitled to full faith and credit.

2. Ex Parte Divorce

An ex parte divorce is a divorce based on the domicile of only one of the spouses. For an ex parte divorce to be afforded full faith and credit, it must adhere to the subject-matter jurisdiction rules, namely that at least one person must reside in the state. Personal jurisdiction must exist over one spouse. The difference between a bilateral divorce and an ex parte divorce is that in an ex parte divorce, full faith and credit is not given to other marital agreements such as property rights, alimony, and child custody. However, a divorce order dealing with property rights, alimony, or custody will be binding if the nondomiciled spouse agrees. A bilateral divorce decree will generally receive full faith and credit with regard to such matters.

JUDGMENTS FROM FOREIGN COUNTRIES: Courts will generally extend comity to foreign divorce judgments, as long as the requirements of domicile are met. With respect to other divorce-related agreements such as alimony, property, and child custody, the rules are usually followed the same as if the judgment came from another state.

Question 50

Recognition of Child Custody Orders

Answer 50

There is a reciprocal statute in all 50 states that governs child custody: the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, a court can make initial custody decisions if it is in the child’s home state, and all other states must give full faith and credit to such decisions. Other states cannot modify these custody decrees unless the original court has no significant connection to the child or parents anymore (i.e., neither the child nor the parents reside in that state anymore).