Conflicts

Question 1

Two areas for testing

Answer 1

recognition of jugdments
choice of law

Question 2

Two conditions for a recognition of judgements question

Answer 2

• A judgment has been entered by a court in one jurisdiction; and
• A party is seeking to have that judgment recognized by a court in a different jurisdiction.

Question 3

rendering jurisdiction

Answer 3

where judgement origionally entered

Question 4

recognizing jurisdiction

Answer 4

place where recognition is being sought

Question 5

1st Question in in judgement recognition analysis

Answer 5

Is the rendering jurisdiction a sister state or a foreign country?

Question 6

Question if rendering state is a sister state

Answer 6

1. Are the requirements of full faith and credit satisfied?
2. Are there any valid defenses?

Question 7

question if rendering state is a foreign country

Answer 7

Is the foreign judgment entitled to comity?

Question 8

Full Faith and credit requirements

Answer 8

1. The rendering state must have jurisdiction over the parties
2. the judgement must have been on the merits
3. The judgement must have been final

Question 9

When the issue of jurisdiction has been ________________ the jurisdictional determination is itself entitled to full faith and credit

Answer 9

fully and fairly litigated

Question 10

examples of judgements not on the merits

Answer 10

• Lack of jurisdiction;
• Misjoinder;
• Improper venue; and
• Failure to state a claim (only if dismissed with prejudice).

Question 11

effect of default judgement

Answer 11

treats all factual contentions as admitted
and is therefore on the merits for full faith and credit and recognition of judgment purposes.

Question 12

is a judgment on appeal final?

Answer 12

no

Question 13

what state law is used to determine jurisdiction, merits, and finality?

Answer 13

the rendering state

Question 14

what state law governs the method of enforcement

Answer 14

the recognizing jurisdiction

Question 15

two valid defenses to full faith and credit

Answer 15

penal judgements
extrinsic fraud

Question 16

penal judgements

Answer 16

A penal judgment is one that punishes an offense against the public. In practice, this means that the plaintiff in the suit that led to the judgment was the state.

Question 17

extrinsic fraud

Answer 17

Extrinsic fraud is fraud that could not be corrected during the regular course of proceedings leading to the judgment.

Question 18

invalid defenses

Answer 18

public policy (when said judgment would not have been allowed by the recognizing jurisdiction)
mistake (when one state misapplies the law of another state)

Question 19

Comity

Answer 19

a recognizing court will exercise discretion to decide whether the foreign judgment should be recognized
- did the foreign court have jurisdiction
- where the foreign court’s procedures fair

Question 20

Two Conditions for a Choice of Law problem

Answer 20

• The lawsuit involves factual connections with multiple states; and
• The multiple states will have different laws leading to different results.

Question 21

A federal court sitting in diversity applies the choice of law approach of

Answer 21

the state in which it sits.

Question 22

When a diversity case is filed in a proper venue, and the case is transferred within the federal system, the federal court applies the choice of law approach of

Answer 22

the original (transferor) court

Question 23

When the case is filed in an improper venue, or filed in a venue in defiance of a forum selection clause, the federal court applies the choice of law approach of

Answer 23

the transferee court (that is, the
court to which the case is transferred)

Question 24

Constitutional Restrictions on Choice of Law

Answer 24

The 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 25

Statutory Restrictions Choice of Law

Answer 25

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. a borrowing statute, which requires the court to apply the SoL of another state regardless of the choice of law approach that the state uses.

Question 26

Three choice of law approaches

Answer 26

1) the vested rights approach of the First Restatement,
(2) the most significant relationship approach of the Second Restatement, and
(3) the interest analysis (governmental interest) approach

Question 27

vested rights approach

Answer 27

(1) characterizing the area of substantive law,
(2) determining the particular choice of law rule
(3) localizing the rule to be applied.

Question 28

most significant relationship approach

Answer 28

1) identify the state having the most significant relationship with the issue: A) consider the connecting facts and B) policy-oriented principles
2) apply that state’s law on that issue.

Question 29

interest analysis approach

Answer 29

1) “false conflict” when of the two states, involved, only the forum one has an interest in the litigation, apply that states law
2) “true conflict” when both states have an interest in the litigation, apply the laws of the forum state

Question 30

Structure of a Conflicts answer

Answer 30

• paragraph 1) state the issue and identify the choice of law approach
• paragraph 2) describe the choice of law approach
• Paragraph 3) apply the choice of law approach to the facts
• Conclusion) the governing law and the result

Question 31

What is the language first paragraph of an answer

Answer 31

“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 32

Vested rights rule for paragraph 2

Answer 32

“This is a torts case. Therefore, the applicable vesting rule is the place of injury.

Question 33

Interest analysis rule for paragraph 2

Answer 33

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.”

Question 34

Most significant relationship rule for paragraph 2

Answer 34

“Under this approach the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider connecting facts and policy principles.

Question 35

Policy oriented principles under the most significant relationship approach

Answer 35

(i) needs of interstate systems;
(ii) relevant policies of forum;
(iii) policies and interests of other jurisdictions;
(iv) expectations of parties;
(v) basic policies underlying substantive law;
(vi) predictability and uniformity of result;
(vii) ease of determination of foreign law.

Question 36

Vesting Approach Rule for Torts

Answer 36

The governing law is the law where the injury occurred.

Question 37

Vesting Approach Rule for Contracts

Answer 37

Rule #1: If the case is about formation, you apply the law of the place of contracting.
(Issues with capacity; contractual formalities; and consideration.)

Rule #2: If the case is about performance, you apply the law of the place of performance.
(the time, place, and manner of performance; and
excuses for nonperformance)

Question 38

Choice of Law Provisions in contracts

Answer 38

A choice of law provision will be enforced if it is valid and express.
If in doubt, find the provision invalid and do full analysis

Question 39

when is a choice of law provision invalid

Answer 39

• The law selected has no reasonable relationship to the contract.
• The provision was included without true mutual consent.

Question 40

most significant relationship approach in Contracts

Answer 40

Factual considerations: (1) place of contracting; (2) place of negotiation; (3) place of performance; and (4) place where the parties are at home.

Policy principles include: (1) relevant policies of the forum state; (2) relevant policies of other connected states; and (3) reasonable expectations of the parties.

Question 41

most significant relationship approach in Torts

Answer 41

Connecting Facts: 1) place of injury; (2) of the conduct causing injury; (3) where the parties are at home; and (4) where the relationship, if any, is centered.

Policy principles: (1) the relevant policies of the forum state and (2) the relevant policies of other connected states.

Question 42

IN TORT: Under the interests approach and the most significant relationship approach, when is the governing law NOT the place of injury

Answer 42

1) The rule at issue is a loss distribution rule (such as loss limitations, vicarious liability rules, and rules eliminating liability like immunity rules); and
2)The parties share a common domicile.

Question 43

Choice of law rule for Immovable (real) property

Answer 43

Apply the law of the situs

Question 45

Choice of law rule for Movable (personal Property)

Answer 45

• Rule #1: For inter vivos transactions, apply the law of the situs at the time of transaction.
• Rule #2: For inherited property, apply the law of the decedent’s domicile at the date of death.

Question 46

define situs

Answer 46

where the property sits

Question 47

Recognition of Marriages

Answer 47

If a marriage is valid where performed, it will be recognized as valid everywhere.

Question 48

When will a state not recognize a marriage?

Answer 48

When domiciliaries of one state temporarily relocate to another state to enter into a marriage that violates a prohibitory rule in their home state, the state of domicile will not recognize the marriage.

Prohibitory rules = express a strong public policy regarding marriage, such as rules against incest, polygamy, and marriage under a minimum age.

directory rules = administrative in nature, requiring a marriage license, parental consent, and a blood test.

Question 49

Choice of Law Rule for Divorces

Answer 49

The forum will apply its own divorce laws.

(To acquire jurisdiction, at least one of the parties must be domiciled in the state so the state has an interest in applying its own law.)`

Question 50

Choice of Law Rules for Children (legitimacy and paternity)

Answer 50

Rule #1: 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 legitimization concerning paternity are governed by the law of the father’s domicile.

Question 51

DEFENSE #1: PUBLIC POLICY

Answer 51

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

Question 52

DEFENSE #2: PROCEDURAL RULES

Answer 52

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

Question 53

SoLs are generally viewed as (substantive or procedural)

Answer 53

procedural

Question 54

Borrowing Statue Exception

Answer 54

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

Question 55

Limitations that Condition a Substantive Right exception

Answer 55

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

Question 56

Domicile Requirements

Answer 56

An individual with domicile capacity acquires a domicile when two conditions are satisfied:
(1) physical presence in the new domicile;
and
(2) an intent to remain permanently (or indefinitely) in the new domicile.

Question 57

domicile by operation of law

Answer 57

An individual who lacks domicile capacity is assigned one by law.

Question 58

domicile for children

Answer 58

Rule #1: Newborns are assigned the domicile of their parents.

Rule #2: In cases of divorce, children are assigned the domicile of their custodial parent.

Question 59

Domicile for incompetents

Answer 59

Rule #1: An individual who is mentally incompetent is assigned the domicile of their parents.

Rule #2: If an individual becomes incompetent after acquiring a domicile by choice, they retain the chosen domicile.