Conflicts of Law Flashcards
There are two important but distinct testing areas for conflicts of law:
1) Recognition of judgment; AND
2) Choice of law
A recognition of judgments questions may arise when two conditions are satisfied in the fact pattern:
1) A judgment has been entered by a court in one JDX (rendering JDX);
2) A party is seeking to have that judgment recognized by a court in a different JDX (recognizing JDX).
What is the core question regarding recognition questions?
Will the recognizing court recognize the judgment issued by the rendering court?
There is an overall two-part analysis for recognition questions. What are they?
1) Is the rendering JDX a sister state or a foreign country?
2a) If a Sister State:
Are the requirements of full faith and credit satisfied?
Are there any valid defenses?
2b) If a foreign country
Is the foreign judgment entitled to comity?
Under the full faith and credit element, there are three requirements that must be satisfied. What are they?
1) The rendering State must have had JDX over the parties (i.e., PJ and SMJ)
2) The judgment entered must have been on the merits.
3) The judgment must be a final judgment.
What are examples of judgments that are NOT on the merits?
1) Lack of JDX (either PJ or SMJ)
2) Misjoinder
3) Improper venue
4) Failure to state a claim
Are default judgments and consent judgments entered after settlement considered judgments based on the merits for full faith and credit analysis?
YES
They are considered to be on the merits for recognition analysis. HOWEVER, they are not considered on the merits for issue preclusion analysis in Civ Pro.
The analysis of recognition is based on what? The render State or the Recognizing State?
RENDERING State
But note that the law of the enforcing State (recognizing State) governs the method of enforcement.
Under the 2nd step of the recognition of a Sister State judgment analysis, what are the two valid defenses to a full faith and credit judgment?
1) Penal judgments - the plaintiff in the rendering State that led to the judgment was the State.
2) Extrinsic Fraud - Fraud that could not be corrected during the regular course of proceedings leading to the judgment.
What are the two attractive but INVALID defenses under the recognition of sister State conflict of law analysis?
1) Public policy
2) Mistake
THESE ARE NOT VALID DEFENSES. DO NOT USE THEM FOR ANALYSIS.
If the rendering court is a court in a foreign country, then the source of the obligation to recognize the judgment is comity or treaty. A recognizing court will exercise ___________ to decide whether the foreign judgment should be recognized.
Discretion
A choice of law essay question may arise when two conditions are satisfied in the fact pattern:
1) The lawsuit involves factual connections with multiple States; AND
2) The multiple States will have different laws leading to different results.
What is the core question in choice of law questions?
Which State’s law will govern?
What is the core answer to the core question for choice of law questions?
The governing law is the law selected by the forum court according to its choice of law approach.
There are two exceptions to the core answer: “the governing law is the law selected by the forum court according to its choice of law approach.” What are they?
1) A federal court sitting in diversity applies the choice of law approach of the State in which it sits.
2) Transferred diversity cases
When filed in proper venue and then transferred within the federal system, the federal court applies the choice of law of the original (transferor) court.
When filed in improper venue, or filed in a venue in defiance of a forum selection clause, the law of the transferee court will apply.
What are the three main analytical approaches to choice of law?
1) The Vested rights approach of the 1st RST;
2) The most significant relationship approach of the 2nd RST;
3) The Interest Analysis approach
In the Vested rights approach (traditional approach), the following three analytical steps are taken:
1) Characterizing the area of substantive law;
2) Determining the particular choice of law rule; AND
3) Localizing the rule to be applied.
The forum will generally apply its own law in characterizing an issue, even if the State where the issue arose would apply a different characterization.
In a basic structured answer of a choice of law answer, what are the three paragraphs?
Paragraph 1 - state the issue and identify the choice of law approach (given in fact pattern)
Paragraph 2 - Describe the choice of law approach (basically the rule statement of the approach)
Paragraph 3 - Apply the choice of law approach to the facts and reach a conclusion.
What is the rule statement for a vested rights approach?
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.
What is the rule statement for an Interest Analysis?
Under this approach the court will consider which States have a legitimate interest in the outcome of the litigation. The forum court will apply it sown 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.
What is paragraph 3’s structure for Vested Rights approach?
Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.
What is paragraph 3’s structure for Interest Analysis?
Discuss which States have legitimate interests
Characterize the type of conflict (false conflict arises when only 1 State has legitimate interest, a true conflict arises when 2 or more States have a legitimate interest)
Choose the governing law based on the type of conflict [False - apply the law of the interested State; True - apply the forum law if forum State is interested]
Apply the governing law to determine the result
What is the rule statement for Most Significant relationship approach?
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.
What is paragraph 3’s structure for most significant relationship approach?
Discuss connecting facts
Discuss policy principles
Choose governing law based on most significant relationship
Apply the governing law to determine result
What are the typical policy principles for most significant relationship approach?
Needs of interstate system
relevant policies of forum
Policies and interests of other JDXs
Expectations of parties
Basic policies underlying substantive law
Predictability and uniformity of result
Ease of determination of foreign law
Which approach is insensitive to the substantive area coupled with choice of law question?
Interest Approach!
Both Vested Rights and the Significant Relationship Approaches analysis is adjusted to the substantive law.
What is the Vested Rights rule for torts?
The governing law is the law where the injury occurred.
What are the factual connections for significant relationships approach for torts?
Place of injury
Of the conduct causing injury
Where the parties are at home
Where the relationship, if any, is centered
What are the policy connections for significant relationships approach for torts?
The relevant policies of the forum State AND
The relevant policies of other connected States
under Torts, For all approaches, the governing law will almost always be the law of the place of injury. However, the two modern approaches (significant relationships and interests approaches) will deviate when two conditions are present:
1) The rule at issue is a loss distribution rule (such as loss limitations, vicarious liability rules, and rules eliminating liability); AND
2) The parties share a common domicile.
What is paragraph 3’s structure for Vested Rights approach?
Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.
What is the Vested Rights rule for Contracts?
A choice of law provision in a contract allows the parties to select the law that will apply to their contract. A choice of law provision will be enforced if:
It is valid AND express
The choice of law provision may be deemed invalid for two reasons?
1) The law selected has no reasonable relationship to the contract
2) The provision was included without true mutual consent
What are the two rules for vested rights approach under contract?
If the case is about formation or validity, you apply the law of the place of contracting.
If the case is about performance, you apply the law of the place of performance.
What is paragraph 3’s structure for Vested Rights approach?
Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.
What are the factual connections for significant relationships approach for Contracts?
The place of contracting
The place of negotiating
The place of performance
The place where the parties are at home
What are the policy connections for significant relationships approach for Contracts?
The relevant policies of the forum State
The relevant policies of other connected States; AND
The reasonable expectations of the parties
Property is the one substantive area where ALL approaches essentially continue to apply the same rules. What are the rules for real and personal property?
If real property, apply the law of the situs
If personal property and it involves an inter vivos transaction, apply the law of the situs at the time of transaction.
If personal property and it involves a matter relating to inheritance, you apply the law of the decedent’s domicile at the date of death.
If a marriage is valid where performed it will be recognized as valid:
Everywhere.
The forum State applies what laws for divorce?
Its own divorce laws.
What are the two defenses to choice of law?
1) Public Policy - A forum court will not apply a law that is against its own FUNDAMENTAL public policy. Remember, this may not be a defense to the recognition of judgments analysis!!!
2) Procedural Rules - regardless of the outcome of the choice of law analysis, the forum court will ALWAYS apply its own procedural laws
How is domicile of an individual determined?
1) physical presence
2) Intent to remain indefinitely.
What is paragraph 3’s structure for Vested Rights approach?
Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.
