Conflicts of Law Flashcards
3 general approaches of choice of Law Q’s
Courts generally approach choice-of-law questions using one of three different approaches:
• The vested-rights approach of the Restatement (First) of Conflict of Laws;
• The most-significant-relationship approach of the Restatement (Second) of Conflict of Laws and
• The governmental-interest approach.
A state may use different choice-of-law approaches for different substantive areas of the law.
. Vested-Rights Approach
This approach looks to the jurisdiction where the parties’ rights are vested, meaning where the
act or relationship that gives rise to the cause of action occurred or was created. Generally, this
approach looks for the location where the last liable event took place.
In determining where vesting occurred, the forum court will first characterize the issues in the
cause of action. Initially, this involves a determination of whether the issue is substantive or
procedural.
o If the issue is procedural, then the forum court will apply its own procedural rules.
o If the issue is substantive, then the court must identify the substantive area of the law
involved.
After characterizing the issue in the cause of action, the forum court will then determine what
the forum state’s choice-of-law rules require with regard to the characterized issue. For
example, if the issue has been characterized as a substantive tort issue, then the law of the
forum state may require that the law of the place of the injury apply.
Most-Significant-Relationship Approach
The Restatement (Second) of Conflict of Laws applies the law of the state with the most significant relationship to the issue in question.
When determining which state has the most significant relationship, the forum court generally
considers the contacts that link each jurisdiction to the case, as well as the seven policy
principles that are set forth in the Restatement (Second) of Conflict of Laws (see outline).
Exam Tip 2: The Restatement (Second) of Conflict of Laws includes specific
presumptive rules for several different substantive areas of the law that are
discussed below. These specific presumptive rules have been recently tested.
Governmental-Interest Approach
Under the governmental-interest approach, it is presumed that the forum state will apply its
own law, but the parties may request that another state’s law be applied. If a party makes such
a request, then that party must identify the policies of competing laws.
If there is a false conflict (i.e., the forum has no interest in the litigation), then the court applies
the law of the state that does have an interest in the case. If there is a true conflict (i.e., the
forum state and another state both have an interest in the litigation), then the forum state will
review its own policies to determine which law should apply. If the conflict cannot be
resolved, then the law of the forum state is applied.
- Torts rules for conflict of laws in this
a. Vested-rights approach
Under the vested-rights approach a tort case will be governed by the law of the place
where the wrong was committed (i.e., lex loci delicti). This means the place where the last
event necessary to make the actor liable for the tort took place (generally the place where
the person or thing that is injured is situated at the time of the wrong).
b. Most-significant-relationship approach
Under the most-significant-relationship approach the court considers four important
contacts: (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.
c. Governmental-interest 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.
. Contracts Special Rules Conflict of Laws
Under the vested-rights approach, certain contractual issues are deemed to vest in the
location where the contract was executed, while others are deemed to vest in the location
where the contract was to be performed.
The law of the place where the contract is executed will apply to the following issues:
Validity of the contract;
Defenses to formation of the contract; and
Interpretation of the contract.
The law of the location where the contract was to be performed will apply to:
Details of performance such as time and manner of performance;
The person who is obligated to perform and the person to whom performance is to be
made;
Sufficiency of performance; and
Excuses for nonperformance.
Excuses for nonperformance.
c. Most-significant-relationship approach
Under the most-significant-relationship approach, the following factors are considered, in
addition to the seven policy factors (in the outline):
The location of the contracting, negotiation, and performance;
The place where the contract’s subject matter is located; and
The location of the parties’ domiciles, residences, nationalities, places of incorporation,
and places of business.
Generally, when the location of negotiation and performance are the same, the forum court
will apply the law of that state.
d. Default rules
There are also default rules that apply to certain kinds of contracts. These default rules will
generally apply unless another state is found to have a more significant relationship with
regard to the issue.
Land contracts are controlled by the law of the state of the situs (location) of the land.
Personalty (personal property) contracts are controlled by the law of the state where
the place of delivery is located.
Property special rules
a. Tangible personal property
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.
Secured Transactions: Under the UCC, the law governing the perfection, nonperfection,
and priority of security interests in tangible and intangible collateral is generally the law
of the state in which the debtor is located.
b. Transactions not covered by the UCC
1) Vested-rights 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. This rule controls even when the property at issue may have been taken to
another state without the permission of the owner.
2) Most-significant-relationship approach
Under the most-significant-relationship approach, the law of the situs (location) of the
tangible personal property at the time that the relevant transaction took place
generally determines the choice of law. However, if it is determined that another state
has a more significant relationship to the transaction, then that state’s law will apply.
c. Real Property
1) Vested-rights approach
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. The forum state will refer to the law of the situs state even with regard to the
choice-of-law rules.
2) Most-significant-relationship approach
Under the most-significant-relationship approach, the law of the situs of the real
property is generally presumed to be most significant.
Inheritance - Special rules
There are many questions that may arise when determining the law that governs inheritance.
These questions include the validity of the will, the rights of nonmarital or adopted children to
inherit property, and the marital rights of the surviving spouse.
a. Personal Property
Questions regarding the validity of a decedent’s will regarding personal property and the
transfer of personal property from someone who dies intestate or who has a will are
governed by the law of the deceased’s domicile at the time of death.
b. Real property
Questions regarding the validity of a decedent’s will regarding real property and the transfer
of real property from someone who dies intestate or who has a will are governed by the law
of the situs.
Family law Special Rules
a. In general
Marriages are valid where they took place and are recognized in all other states. If a
marriage violates a particularly strong public policy of the domicile of either party, however,
it will be invalid. Such policies can include bigamy and incest.
Exam Tip 4: A common law marriage that is valid where contracted is also valid
in a state that does not permit common law marriage unless it violates a strong
public policy of the domicile of either party.
b. Divorce and marital property (recently tested)
Questions of law relating to the grounds for divorce are controlled by the law of the
plaintiff’s domicile in a divorce matter.
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.
Some states apply the law of the state in which the premarital agreement was
executed.
B. Substance/Procedure Distinction
If the foreign law sought to be applied is procedural, then the forum state’s law will always govern.
The forum state’s law is applied to determine whether a law is substantive or procedural, so long as the
result is not arbitrary or so unreasonable as to constitute a denial of due process or full faith and credit.
1. Procedural
Questions about the following matters are generally considered procedural and are controlled
by the law of the forum state:
o The proper court in which to bring an action;
o The sufficiency of the pleadings;
o The proper or necessary parties to an action;
Conflict of Laws Essay Workshop | © 2019 Themis Bar Review, LLC | 9
o Venue;
o The rules of discovery;
o Service of process;
o Others (see outline).
Federal diversity cases (recently tested)
Under the Erie doctrine, in diversity jurisdiction cases, federal district courts must apply the
substantive law of the state where the court sits.
The Erie doctrine does not require that the forum state’s procedural laws be applied, however,
and if a Federal Rule of Civil Procedure addresses the procedural issue at hand, then that rule
will be applied.
If no federal rule applies, then the district court must follow state law with regard to substance,
but it can choose to ignore state law with regard to procedure, under certain circumstances.
To determine whether a given law is substantive or procedural, the court considers whether the
failure to apply state law would lead to different outcomes in state and federal courts. If the
answer is yes, then the court will generally apply state law.
Exam Tip 5: A state’s choice of law rules are considered to be substantive
law. Therefore, a federal court with diversity jurisdiction must use the choice of
law rules of the state that it is located in.
Example 5: (Based on a recent exam question): O files a lawsuit in federal
court in State A based on diversity jurisdiction. The federal court must use State
A’s choice of law rules because they are substantive in nature.
C. Laws Against Public Policy
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.
D. Penal Laws
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.
. Recognition of Divorce Judgments (recently tested)
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.
- 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. - Ex Parte Divorce (recently tested)
Personal jurisdiction over both spouses is not necessary to dissolve a marriage. If the plaintiff
spouse seeking divorce is domiciled in the forum state, the courts of that state have jurisdiction
to dissolve the plaintiff’s marriage (despite the lack of personal jurisdiction over the other
spouse).
However, the court may not issue a binding order affecting personal rights of the spouses such
as property rights, alimony, and child custody unless the other spouse who is not domiciled in
the state agrees to the order. - Child Custody
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).
