Conflicts of Law Flashcards
Contracts - 2d Restate
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)
Contracts - Vesting
If case has to do with
- FORMATION: apply law of place of EXECUTION
- Capacity
- Contractual formalities
- Consideration - PERFORMANCE: apply law of place where contract was to be PERFORMED
- Time / place / manner
- Excuses
Contracts, MSR
PLACE of
- Contracting
- Negotiation
- Performance
- Location of subject matter
- Domicile, residence, nationality, incorporation and business of parties
Family law
- 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
Foreign country’s judgment
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
Interest Analysis
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.”
Most significant relationship (MSR) / 2d Restatement
- Discuss connecting facts
- Discuss policy principles
- Who cares about the outcome here? - Choose the governing law based on the most significant relationship
- 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
“On the merits”
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
Penal judgment
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
Recognition analysis
- Was the rendering jxn a sister STATE or a foreign country?
- Is the judgment entitled to full faith and CREDIT?
- Art 4: sister states
- Statutory: federal / state; same comity
Sister state judgment
- 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 - Are there any valid defenses?
- Penal judgements
- Judgment based on extrinsic fraud
Three primary choice of law approaches
- Vested rights / 1st Restatement
- Interest Analysis
- Most significant relationship / 2nd Restatement
Torts - MSR
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
Torts - Vesting
Governing law is where the injury occurred
Vested rights / 1st Restatement
- 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
A federal court in a diversity case must apply the conflict of law rules of….
The state in which it sits
Borrowing Statutes
State will use SoL other than own in certain statutorily defined situations
- Consider both states’ SoL, apply whichever is SHORTER
Choice of law provision
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
Contracts, Vested Rights
Validity problem? Place of making
Performance problem? Place of performance
Corporations
Place of incorporation
Domicile by choice
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
Domicile by operation of law
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.
Erie Doctrine SoL
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
Extrinsic fraud
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
Final judgment
Final:
- Past due payments
Not final:
- Case on appeal
- MODIFIABLE decree
- Future payments
Identifying a choice of law question
- 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?
Limits on state’s ability to choose choice of law approach
- 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 - Statutes: use statute of forum state if it dictates choice of law
Misapplication of law
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
Procedural rules defense to choice of law
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)
Property
- IMMOVABLE: apply the law of the situs
- MOVABLE
- Inter vivos: law of situs at the time of the transaction
- Inheritance: law of decedent’s domicile at date of death
Will a state have to recognize a judgment that goes against its public policy?
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
Public policy defense to choice of law
* 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
SoL Conditions Substantive Right
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
Statute of Limitations for Choice of Law
Generally, treat SoL as PROCEDURAL, so forum will apply its OWN SoL rules
Structure of choice of law answer
- 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). - Describe choice of law approach
- Depends on which approach (1/2/3) - Apply choice of law approach to facts of case
Torts, generally
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
Torts, MSR
PLACE of
- Injury
- Conduct causing the injury
- Residence/business of parties
- Center of parties’ relationships
Torts, Vested Rights
Place of injury
Situation for recognition of judgments
- Judgment rendered by court in RENDERING jxn
- Party wants judgment recognized by court in RECOGNIZING jxn
- Will the recognizing court recognize the rendering court’s judgment?
Which state’s law governs?
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
Why plaintiffs seek recognition
- Access to ENFORCEMENT mechanisms in recognizing state
- Prevent plaintiff from re-litigating claim or issue (claim / issue preclusion)
Workers’ Comp
Forum
