Conflicts of Law

Question 1

Contracts - 2d Restate

Answer 1

FACTS
- Place of contracting
- Place of negotiation
- Place of performance
- Where parties are at home
POLICIES
- Policy of forum state
- Policies of other connected states
- Reasonable expectations of the parties (err on side of enforceable)

Question 2

Contracts - Vesting

Answer 2

If case has to do with

1. FORMATION: apply law of place of EXECUTION
   - Capacity
   - Contractual formalities
   - Consideration
2. PERFORMANCE: apply law of place where contract was to be PERFORMED
   - Time / place / manner
   - Excuses

Question 3

Contracts, MSR

Answer 3

PLACE of

• Contracting
• Negotiation
• Performance
• Location of subject matter
• Domicile, residence, nationality, incorporation and business of parties

Question 4

Family law

Answer 4

• Marriage is valid where performed, recognized everywhere EXCEPT if temporarily move to another state to AVOID prohibitory rule in home state
• Divorce: courts apply their own divorce laws. If it has jxn, then it uses its laws.
• Legitimacy: mother’s domicile at time of child’s birth. Validity of subsequent acts of legitimacy, father’s domicile
• Adoption: forum

Question 5

Foreign country’s judgment

Answer 5

Is the foreign judgment entitled to comity? Discretionary analysis. No constitutional backdrop, just treaties. Much more flexible.

• Did the foreign court have jxn? Can re-litigate in the USA, assess by American due process principles
• Were the foreign court procedures fair? Can re-litigate in the USA, if sham, will not enforce judgment

Question 6

Interest Analysis

Answer 6

Purposive; what state has the most interest in the dispute.
1. Discuss which states have legitimate interests
- Which purposes are being served?
2. Characterize the TYPE of conflict
- False conflict: only one state has a legitimate interest
- True conflict: two or more states have a legitimate interest
3. Choose GOVERNING LAW based on type of conflict
- False conflict: apply the law of the interested state
- True conflict: if the forum state is an interested state, apply its own law
4. Apply the governing law to determine result
“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 7

Most significant relationship (MSR) / 2d Restatement

Answer 7

1. Discuss connecting facts
2. Discuss policy principles
   - Who cares about the outcome here?
3. Choose the governing law based on the most significant relationship
4. Apply governing law to determine result.
   “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”
   - If facts are really divided, will rely on policy
   - Needs of interstate system
   - Relevant policies of forum
   - Policies and interests of other jxns
   - Expectations of parties
   - Basic principles underlying substantive laws
   - Predictability and uniformity of results
   - Ease of determination of foreign law

Question 8

“On the merits”

Answer 8

Determined what actually happened in the case, e.g., the facts, what law was for the claim.
- ON THE MERITS
Default judgment
Consent judgment after settlement
- NOT on the merits:
SoL
Lack of Jxn
Misjoinder
Venue
Failure to state a claim w/OUT prejudice

Question 9

Penal judgment

Answer 9

Punishes an offense against the public
- Generally, plaintiff is the state

Does not include -

• Final TAX judgement (even though could serve jail time)
• Punitive damages obtained by a private party are not a penal judgment

Question 10

Recognition analysis

Answer 10

1. Was the rendering jxn a sister STATE or a foreign country?
2. Is the judgment entitled to full faith and CREDIT?
   - Art 4: sister states
   - Statutory: federal / state; same comity

Question 11

Sister state judgment

Answer 11

1. Are the requirements for full faith and credit satisfied? ** Based on the laws of the rendering jxn, even though recognizing court doing analysis
   - JXN: rendering court had PJ and SMJ. However, cannot challenge jxn if fully and fairly litigated / PJ was waived.
   - Rendered on the MERITS
   - FINAL judgment
2. Are there any valid defenses?
   - Penal judgements
   - Judgment based on extrinsic fraud

Question 12

Three primary choice of law approaches

Answer 12

1. Vested rights / 1st Restatement
2. Interest Analysis
3. Most significant relationship / 2nd Restatement

Question 13

Torts - MSR

Answer 13

FACTUAL CONNECTIONS
1. Place of injury
2. Place of conduct causing injury
3. Place where parties are at home
4. Place where the relationship, if any, is centered
POLICY PRINCIPLES
- Relevant policies of the forum state
- Relevant policies of other connected states

Question 14

Torts - Vesting

Answer 14

Governing law is where the injury occurred

Question 15

Vested rights / 1st Restatement

Answer 15

• Governed by the laws of the state where the claim AROSE
• Where did the claim arise? VESTING RULES
• “Under this approach, the court will apply the law of that state mandated by the applicable vesting rule. That rule is selected according to the relevant substantive area of law.”
  1. Categorize the substantive area of law (e.g., torts, family, contracts)
  2. On basis of category, state applicable vesting rule
  3. Apply vesting rule to determine governing law
  4. Apply governing law to get result

Question 16

A federal court in a diversity case must apply the conflict of law rules of….

Answer 16

The state in which it sits

Question 17

Borrowing Statutes

Answer 17

State will use SoL other than own in certain statutorily defined situations
- Consider both states’ SoL, apply whichever is SHORTER

Question 18

Choice of law provision

Answer 18

Enforceable if it is -
1. Valid
- Parties have selected a law that has no reasonable relationship to the contract
- Included without true mutual assent
2. Express
Displaces regular choice of law analysis
- When in doubt…invalid

Question 19

Contracts, Vested Rights

Answer 19

Validity problem? Place of making
Performance problem? Place of performance

Question 20

Corporations

Answer 20

Place of incorporation

Question 21

Domicile by choice

Answer 21

Physical presence + intent to remain permanently or indefinitely. Can be an important policy consideration.

• Motive does not matter
• States have an interest in protecting their domiciliaries
• Rule of D’s in property

Question 22

Domicile by operation of law

Answer 22

Do not have capacity to choose domicile

• Children: newborns = parents; domicile of custodial parents on divorce
• Mental incompetences: assigned domicile of parents. If they lose after choosing, retain their old domicile.

Question 23

Erie Doctrine SoL

Answer 23

SoL are SUBSTANTIVE

• Should Fed Ct apply its own SoL, state in which it sits?
• Want Fed and State court to reach essentially the same cases

Question 24

Extrinsic fraud

Answer 24

Fraud that could not be corrected during the regular course of proceeding
- E.g., judge was bribed
Not extrinsic fraud, i.e., could have done something
- Perjury

Question 25

Final judgment

Answer 25

Final:
- Past due payments
Not final:
- Case on appeal
- MODIFIABLE decree
- Future payments

Question 26

Identifying a choice of law question

Answer 26

• Factual connections to different states
• Laws of states are different and lead to different results
• No JUDGMENT has been entered; in the first instance, which law should apply to the suit?

Question 27

Limits on state’s ability to choose choice of law approach

Answer 27

1. Constitution: only if no significant contact or no legitimate interest
   - Cannot be random, meaningless
   - States should choose between states that arguably have an interest in the dispute
2. Statutes: use statute of forum state if it dictates choice of law

Question 28

Misapplication of law

Answer 28

Rendering court does the choice of law analysis but then uses the chosen law wrong…e.g., chooses law A, then misapplies the law of A

• State A must still enforce judgment!
• Forces State A to just swallow the mistake and enforce anyway
• Mistakes should be challenged by an appeal in the rendering state, rather than doing so through enforcement proceedings

Question 29

Procedural rules defense to choice of law

Answer 29

Regardless of the outcome of the choice of law analysis, the forum court will continue to apply its own PROCEDURAL rules

• State to state
• C.f. state / federal (Erie)

Question 30

Property

Answer 30

1. IMMOVABLE: apply the law of the situs
2. MOVABLE
   - Inter vivos: law of situs at the time of the transaction
   - Inheritance: law of decedent’s domicile at date of death

Question 31

Will a state have to recognize a judgment that goes against its public policy?

Answer 31

There is no “roving” public policy exception to full faith and credit. Invalid defense!

• In a recognizing court a judgment may not be entered because it is against public policy, but still may be enforced if from another state
• Against public policy of recognizing state

Question 32

Public policy defense to choice of law

Answer 32

* C.f. recognition of judgments…
A forum court will not apply a law against its own FUNDAMENTAL public policy
- Must be offensive
- There is a roving public policy exception to choice of law

Question 33

SoL Conditions Substantive Right

Answer 33

If after COL analysis court decides to apply other states’ statute, court must apply entire statute, including limitations

• If statute CREATES the right to recover and LIMITATION period, apply statute’s limitation period
• Almost always wrongful death statutes

Question 34

Statute of Limitations for Choice of Law

Answer 34

Generally, treat SoL as PROCEDURAL, so forum will apply its OWN SoL rules

Question 35

Structure of choice of law answer

Answer 35

1. Describe choice of law
   “The issue presented is which state’s law will govern. The governing law will be selected by the forum court using the (provided choice of law approach, 1/2/3).
2. Describe choice of law approach
   - Depends on which approach (1/2/3)
3. Apply choice of law approach to facts of case

Question 36

Torts, generally

Answer 36

Unless in vested rights jxn…
Almost always place of injury. If BOTH conditions are met, apply the law of COMMON DOMICILE:
1. Rule at issue is a LOSS DISTRIBUTION RULE (c.f. conduct regulation)
- Damage caps
- Vicarious liability rules
- Immunity rules eliminating liability
2. Parties share common domicile

Question 37

Torts, MSR

Answer 37

PLACE of

• Injury
• Conduct causing the injury
• Residence/business of parties
• Center of parties’ relationships

Question 38

Torts, Vested Rights

Answer 38

Place of injury

Question 39

Situation for recognition of judgments

Answer 39

1. Judgment rendered by court in RENDERING jxn
2. Party wants judgment recognized by court in RECOGNIZING jxn
   - Will the recognizing court recognize the rendering court’s judgment?

Question 40

Which state’s law governs?

Answer 40

Law selected by forum court’s under its choice of law approach
- Common law
- Wide discretion
* In DIVERSITY cases in FEDERAL court, court applies the choice of law approach of STATE in which it SITS
- E.g., federal judge in MA uses MA choice of law rules
- Eerie: choice of law = substantive
* In DIVERSITY cases TRANSFERRED in federal system, apply choice of law APPROACH of original TRANSFEROR court, but only if VENUE was PROPER
- If IMPROPER venue or valid FSC, apply its OWN choice of law rules

Question 41

Why plaintiffs seek recognition

Answer 41

• Access to ENFORCEMENT mechanisms in recognizing state
• Prevent plaintiff from re-litigating claim or issue (claim / issue preclusion)

Question 42

Workers’ Comp

Answer 42

Forum