Conflicts of Law

Question 1

How many domiciles can a person have?

Answer 1

Only 1

Question 2

How can domicile be acquired?

Answer 2

By choice or by law

Question 3

To acquire domicile by choice…

Answer 3

Presence + intent to remain

1. Person must abandon previous domicile,
2. establish physical presence at chosen one, and
3. have an intent to remain there for indefinite time

Question 4

How is intent to remain shown?

Answer 4

Person’s actions and statements taken as a whole.

Ex: real estate, voting, paying taxes, setting up bank account, registering car there–all relevant, but none conclusive by itself

Question 5

To establish physical presence…

Answer 5

Person needs to be physically present, but no timing requirement as long as combined by intent

Question 6

What is domicile by law?

Answer 6

When person doesn’t have legal capacity to choose their domicile, law chooses it for them.

Ex: children

Question 7

Domicile for corporation generally…

Answer 7

Where they are incorporated, but principal place of business may be relevant.

Question 8

Choice of law issue exists whenever…

Answer 8

the laws of more than jx arguably apply to same set of facts.

Question 9

What is the forum state?

Answer 9

State in which the lawsuit is brought. Law of that state is call forum law.

Question 10

What is the law of the other state called (non-forum state)?

Answer 10

Foreign law

Question 11

What will a jx look to in deciding which law to apply?

Answer 11

Their forum law (unless fed statute otherwise?)

Question 12

3 general approaches to choice of law:

Answer 12

1. traditional/1st restatement approach
2. gov interest/interest analysis approach
3. most significant relationship/2nd restatement approach

If approach not specified, discuss all 3 briefly

Question 13

Traditional/1st restatement approach:

Answer 13

Territorial approach: Each state determines legal effect of only events that occurred within its territory.

As soon as legally significant event occurs, legal right vests under the law of the state in which that legally sig event occurred.

Court just has to figure out where right vested (where legally significant event occurred) and just apply that law.

Question 14

A legal right vests where…

Answer 14

the last act occurred necessary to give P a cause of action (last act requirement).

Question 15

Governmental interest analysis/interest analysis:

Answer 15

Law applies to set of facts if its app to those facts would promote underlying purposes of the law. That state said to be interested in the case.

If only one of the states truly interested, then false conflict, apply law of interested state.

If true conflict, classic solution is for court to apply its own law (forum state). No balancing.

If neither truly interested (unprovided for case), apply law of the forum.

Question 16

Conduct regulating laws are…

Answer 16

laws designed to reg people’s conduct.

Most laws are this.

Question 17

Loss-shifting laws definition

Answer 17

simply determine who can or cannot be made to pay for losses caused by wrongful conduct.

Ex: immunity from suit, vicarious liability rule, etc.

Question 18

Under interest analysis, states have interest in apply conduct reg law whenever…

Answer 18

it occurs within territory of state or causes injury there or when it injures one of their domiciliaries regardless of where it occurred.

Question 19

Under interest analysis, states have interest in applying loss-shifting laws whenever…

Answer 19

applying it would benefit one of their domiciliaries

Question 20

Most significant relationship/2nd restatement approach:

Answer 20

Adopted by about half of the states.

Apply law of the state that has most significant relationship of particular issue in question.

If it’s a true toss-up, safe bet is to apply law of forum state.

Question 21

What counts as a significant relationship between a state and particular issue in question?

Answer 21

2nd restatement 7 guiding principles:
SEE OUTLINE

Basically:

1. Promotion of the relevant policies
2. Protecting systemic interests (like CUPS: certainty, uniformity, predictability, simplicity).
3. Protecting justified expectations of parties (applies only to planned transactions, like trusts, real prop, etc…not neg torts, etc.)

Question 22

What is depesage?

Answer 22

Application of diff states’ laws to diff issues within a single case

Question 23

What is renvoi?

Answer 23

When court applies law of another state, applies whole law of that state, including that state’s choice of law rules (accepting the renvoi vs. rejecting the renvoi).

Question 24

Rule about renvoi

Answer 24

All three approaches to choice of law generally reject the renvoi.

Exception: Issues involving prop rights in land and interests in land, courts generally accept the renvoi.

Question 25

Under traditional approach, tort usually occurs at…

Answer 25

place of injury (because usually last element for cause of action).

Question 26

Under significant relationship approach and torts case, contacts to take into account are…

Answer 26

1. place where injury occurred
2. place where conduct causing injury occurred
3. domicile resident’s place of incorporation or place of business of the parties
4. place where relationship btw parties, if any, centered

weighed wrt relative importance wrt relevant issue

Question 27

What is the presumption under the significant relationship approach for a tort case?

Answer 27

Law of place of injury usually applies in tort cases.

Question 28

What if parties’ contract contains a choice of law clause?

Answer 28

Generally free to choose the law, so generally enforce (rule of party autonomy).

Exception: Validity of contract cannot be resolved solely by parties’ choice of law (ex: illegality of subject matter, incapacity to contract, absence of necessary formalities for contract formation). Second restatement: Parties may still choose law to be applied here if chosen state has a sub relationship to parties or transaction, or some other reasonable basis for the choice. But even if this satisfied, still ignored if app of that law would be contrary to fundamental policy of state with most significant relationship to issue.

Question 29

What if parties don’t make choice of law or make an effective one in contracts context under traditional approach?

Answer 29

Law of place of contracting will govern issues of contract formation, interp or validity.

Place of contracting = where last act to give COA, so usually place of acceptance

Exception: Issues related to performance o contract governed by law of the place of performance.

Question 30

What contacts are taken into account under second restatement approach for a contracts case?

Answer 30

1. Place of contracting, negotiation and performance
2. Place where subject matter of contract located
3. Location of parties’ domiciles, residences, nationalities, places of incorp or business

Question 31

Second restatement presumption for contract cases?

Answer 31

If location of negotiation and performance same, law of that state usually applies.

Question 32

What types of properties are immovables vs. movables?

Answer 32

Immovables: Land and interest in land (including leaseholds)

Movables: Everything else

Question 33

Rules for immovables

Answer 33

Same under both restatements.

All issues regarding immovable prop governed by law of place where prop located (the situs).

Still look at 7 guiding principles, but most important is protection of justified expectations of the parties.

Presumption in favor of applying law of the situs is very strong.

Question 34

When court applies law of the state where real prop located, it ____ the renvoi, meaning…

Answer 34

Accepts the renvoi (exception); it applies the whole law of that state, including their choice of law rules.

Question 35

Tangible movables include…

Answer 35

painting, furniture, boat

Question 36

Intangible movables include…

Answer 36

stock, bond, legal claim

Question 37

Most issues concerning sale of or security interest in tangible movables governed by ___, and it allows parties to…

Answer 37

UCC; choose the applicable law.

Question 38

If dealing with tangible movables and parties have not chosen their applicable law, courts will…

Answer 38

apply forums version of UCC, which contains its own choice of law rules (see outline).

Question 39

If tangible movable but UCC does not apply, what is the rule?

Answer 39

Both restatements: apply law of the state where prop was located at time of transaction.

2nd restatement: calls for app of 7 guiding principles, but strong presumption for law of state where prop was located at time of transaction.

Question 40

For intangible movables, what is the rule? first restatement says…

Answer 40

first restatement: apply law of state where intangible prop was created.

second restatement: apply 7 guiding factors. No presumptions.

Question 41

Issues concerning distribution of immovables at death are governed how?

Answer 41

Under both restatements: law of the situs (where immovable is located). Applies even to issues concerning validity of will or trust.

Question 42

Issues concerning succession of movables are governed how?

Answer 42

Under both restatements: law of decedent’s domicile at time of death. Applies even to issues concerning validity.

Question 43

Will states enforce a choice of law clause if there is one in a will?

Answer 43

Yes - exception to the typical will and trusts choice of law rules.

Question 44

What is the preference in favor of validity wrt wills/trusts?

Answer 44

If will/trust valid under law of place where made, courts will in general enforce even if invalid under law of situs or place of domicile at time of death.

Question 45

For corporate law issues dealing with internal affairs, what choice of law applies?

Answer 45

Under both restatements, governed by law of state of incorporation.

Question 46

What do internal affairs for corporate law issues have to do with?

Answer 46

Rights and obligations of participants in corp venture.

Question 47

What do external affairs for corporate law issues have to do with?

Answer 47

Transactions with third parties who are outsiders to corp venture.

Question 48

For corporate law issues dealing with external affairs, what choice of law applies?

Answer 48

Both restatements: Corp treated like natural person, so governed by normal rules for torts, contracts, etc.

Second restatement relevant contacts: Place of incorporation and place of business both relevant for tort and contract cases.

Question 49

Under traditional approach, how is marriage goverend?

Answer 49

Validity of marriage governed by law of land where marriage was celebrated (where ceremony took place).

Exception: If marriage violates particularly strong public policy of domicile of either party, then courts of the domicile may refuse to recognize it. Ex: polygamy, incestuous marriage, marriage before a certain age. Particularly strong where couple travels elsewhere to be able to get married.

Question 50

Under first restatement how is marriage governed?

Answer 50

Incidents: Determined by law of place where they are sought to be exercise. Court can choose to enforce these even if they don’t see the marriage as valid.

Validity:

Question 51

Under second restatement, how is marriage goverend?

Answer 51

Incidents:

Validity: Marriage that is valid where celebrated will be valid everywhere, unless violates public policy of state with most significant relationship to parties at time of marriage (usually state of domicile).

Question 52

What is marital prop?

Answer 52

Any interest in prop that one spouse acquires in prop of other spouse by virtue of marriage other than expectation of inheritance.

Question 53

For marital interest in immovables, what is the rule?

Answer 53

Regardless of whether prop acquired during marriage or before, usual situs rule applies–where land is located.

Question 54

For marital interest in movables, what is the rule?

Answer 54

No state’s law gives a spouse any claim on such prop acquired before marriage. So wrt movables acquired during marriage: interest in these generally governed by law of state where couple domiciled at time of acquisition.

Ex: Prop acquired as community prop remains so even if moved to non-community prop state.

Question 55

What does judicial notice mean?

Answer 55

Issue is for the judge, not the jury. Ordinary rules of pleading/evidence don’t apply.

Question 56

How does foreign law get introduced?

Answer 56

Nowadays, mostly through judicial notice, though some states still require laws of foreign countries to be pleaded and proved like other facts.

Fed gov must take judicial notice of laws of all 50 states, but require pleading/proof of foreign country law.

Question 57

What defenses can you raise to app of other state’s law?

Answer 57

1. Penal law exception: Under all approaches, court will not enforce penal laws of another state (basically crim laws). But laws that provide for civil recovery are not penal laws (even punitive damages). Tax laws are not penal.
2. Public policy exception: Under both restatements, courts can refuse to apply foreign law if it violates a fundamental and strongly held public policy of forum state. Narrow exception. Courts should not apply exception unless enforcing foreign law would violate forum’s fundamental principles of justice or deep-rooted morals/traditions. If exception is successful: court dismisses case without prejudice, so P can sue elsewhere. Also, can be used to deny a foreign cause of action, but not to deny a foreign defense. The governmental analysis approach does not contain a public policy exception.
3. Procedure/substance distinction: Forum law always governs procedural issues. If unsure: sub law reg people’s behaviors outside of court; procedural rules reg people’s behavior inside court.

Question 58

Is parol evidence rule substance or procedural?

Answer 58

Substantive bc point is to make people put their contracts in writing.

Question 59

Are evidentiary privileges substance or procedural?

Answer 59

First restatement: Procedural, so forum law

Second restatement: Law of state with most significant relationship to the communication applies. Usually where comms took place or where privileged relationship centered. Strong presumption in favor of law that would allow admission.

Question 60

Is a damages cap substance or procedural?

Answer 60

Generally substantive.

First restatement: Measure and type of damages in torts cases substantive–law of place of injury. But statutory limits on damages are procedural, so forum law.

Second restatement: Measure governed by law of state with most significant relationship to issue. But it’s a loss shifting rule, so under both interest analysis and second restatement, state would only apply their damages cap only if it protects a D domiciliary of that state.

Question 61

Are statutes of limitations substance or procedure?

Answer 61

First restatement: procedural, so forum law; exception: if court determines SOL is inextricably bound up with a statutory right, then substantive.

Second restatement: most significant relationship approach, so forum usually applies their own if it would bar claim; if it would permit the claim, should apply unless maintenance of claim would serve no sub interest of the forum and claim would be barred under statute of limitations of state having more significant rel to issue.

Question 62

Borrowing statutes are…

Answer 62

statutes that most states have enacted that bar suits on foreign causes of actions that are precluded under forum states SOL or SOL of place where cause of action arose, whichever is shorter.

Lots of states exempt their own domiciliary Ps from their own borrowing statutes.

Question 63

Under constitution, state may apply its own law to an issue…

Answer 63

only if state has significant contact or aggregation of contacts with the issue such that a choice of its law is neither arbitrary nor fundamentally unfair. Only applies to substantive law.

Forum can apply any procedural law to any issue traditionally viewed as procedural.

Question 64

Which constitutional clauses are relevant to choice of law questions?

Answer 64

DPC: about preventing fundamental unfairness

Full faith and credit clause: prevents states from ignoring each other’s laws

Question 65

Under full faith and credit clause, state cannot close its doors to sister state laws…

Answer 65

solely bc they are foreign state’s laws.

Question 66

What is preemption?

Answer 66

Any state law that conflicts with fed law is null and void

Question 67

What does Erie doctrine say?

Answer 67

Fed courts sitting in diversity jx apply sub law of states in which they sit as interpreted by highest state court.

Question 68

What if state sub law unclear, has not yet been interpreted by highest state court?

Answer 68

Fed court does its best, looking at lower courts in state. Might make Erie guess–what do they think highest court would do.

But once highest court decides, fed court must listen even if case already on appeal.

Question 69

What makes a law substantive under Erie?

Answer 69

Any state law that defines legal rights and obligations of parties is substantive and must be applied in fed diversity action.

So any state law that sets forth burdens of proof or elements of a claim or defense is substantive.

Question 70

SOL under traditional choice of law analysis vs. Erie:

Answer 70

Traditional choice of law: typically procedural

Erie: typically substantive bc outcome determinative

Question 71

What is the purpose of Erie?

Answer 71

Trying to prevent Ps from forum shopping

Question 72

State law is sub for Erie purpose if…

Answer 72

outcome determinative in direct/certain enough way that it encourages forum shopping btw fed and state court.

Question 73

If state law is arguably sub in weak sense of being outcome determinative, but not in strong sense of defining legal obligations…

Answer 73

might have to give way to judge-made fed law depending on outcome of balancing test.

Ex: state law says judge decides vs. fed law says jury decides–jury will be used

Question 74

If codified fed rule (like FRCP or FRE) applies directly to issue in question…

Answer 74

must be applied in fed court. True even if it might be substantive (i.e. outcome determinative).

Question 75

Klaxon rule

Answer 75

Fed courts sitting in diversity must apply state choice of law rules of state in which they sit.

Basically an app of Erie bc state choice of law rules are substantive.

Exception: If diversity case properly filed in fed court in one state but is then transferred to fed court in another state bc of venue, first state’s choice of law rules will apply.

Question 76

Fed court using fed court jx applies…

Answer 76

Fed law

Question 77

To get a judgment from a rendering state enforced in an enforcement state…

Answer 77

You usually just file a record of the judgment with court in second state.

Question 78

Enforcement rule for a judgment from another state…

Answer 78

Must be given same effect it would be given by courts of state that rendered judgement. All kinds of judgments covered. Effect = preclusive effect (ability to preclude further litigation, whether claim or issue). To have preclusive effect, judgment must be valid (rendered by a court with proper jx), final (not appeals outstanding, judgment not modifiable in rendering state) and on merits (sub issues decided by a court; excludes dismissals for lack of jx or without prejudice). No public policy defense.

Per full faith and credit clause.

Question 79

What if two final valid judgments inconsistent?

Answer 79

Last in time rule: Most recent judgment is entitled to full faith and credit

Even if one of the judgments is unconstitutional!!!

Question 80

What is extrinsic fraud?

Answer 80

Something like bribery of a judge, something very serious, that prevents entire proceeding from being valid. Not entitled to full faith and credit.

Mere intrinsic fraud (like perjury or misrep of evidence within proceeding) not enough.

Question 81

If an employee gets a worker’s comp award in state A, what can he get in state B?

Answer 81

A supp award in state B unless law of state A bars additional recovery using unmistakable language.

Question 82

Is a divorce a judgment?

Answer 82

Yes, unlike a marriage.

Question 83

For a state court to grant a divorce…

Answer 83

at least one spouse must be domiciled in that state.

Question 84

What is a bilateral divorce and rule for it?

Answer 84

If court has PJ over both spouses. Entitled to full faith and credit.

Question 85

Ex parte divorce definition and rule?

Answer 85

When divorce sought by just one spouse and court doesn’t have PJ over other. To get one, party seeking it must establish domicile in forum state, usually requiring durational requirement. Entitled to full faith and credit in other states even if no PJ over other spouse. But enforcement state does not have to give full faith and credit to divorcing state’s determination of domicile–can be relitigated. Also, applies only to divorce decree itself (not things like prop, alimony, custody, support, etc.). Everything else valid only if court had PJ over both spouses. (Concept of divisible divorce.)

Question 86

UCCJEA

Answer 86

One state gets exclusive jx to make initial custody determination (usually child’s place of domicile). Other states must give full faith and credit to it. Can only be modified only if original jx no longer has significant relationship to child or parents. Can only be modified by court that meets initial test for exclusive jx, usually one of new state of domicile for child.

Question 87

Foreign country judgments rules

Answer 87

Not subject to full faith and credit clause, so court can decide whether to honor the judgment or not. But usually enforced due to concept of comity–so long as both parties participated, foreign court had jx, and proceeding was fundamentally fair.

Question 88

Uniform Foreign Money Judgments Recognition Act

Answer 88

Most states adopted. Foreign money judgments generally enforceable in same manner as sister-state judgments.