Conflicts of Law

Question 1

There are two important but distinct testing areas for conflicts of law:

Answer 1

1) Recognition of judgment; AND

2) Choice of law

Question 2

A recognition of judgments questions may arise when two conditions are satisfied in the fact pattern:

Answer 2

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).

Question 3

What is the core question regarding recognition questions?

Answer 3

Will the recognizing court recognize the judgment issued by the rendering court?

Question 4

There is an overall two-part analysis for recognition questions. What are they?

Answer 4

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?

Question 5

Under the full faith and credit element, there are three requirements that must be satisfied. What are they?

Answer 5

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.

Question 6

What are examples of judgments that are NOT on the merits?

Answer 6

1) Lack of JDX (either PJ or SMJ)

2) Misjoinder

3) Improper venue

4) Failure to state a claim

Question 7

Are default judgments and consent judgments entered after settlement considered judgments based on the merits for full faith and credit analysis?

Answer 7

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.

Question 8

The analysis of recognition is based on what? The render State or the Recognizing State?

Answer 8

RENDERING State

But note that the law of the enforcing State (recognizing State) governs the method of enforcement.

Question 9

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?

Answer 9

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.

Question 10

What are the two attractive but INVALID defenses under the recognition of sister State conflict of law analysis?

Answer 10

1) Public policy

2) Mistake

THESE ARE NOT VALID DEFENSES. DO NOT USE THEM FOR ANALYSIS.

Question 11

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.

Answer 11

Discretion

Question 12

A choice of law essay question may arise when two conditions are satisfied in the fact pattern:

Answer 12

1) The lawsuit involves factual connections with multiple States; AND

2) The multiple States will have different laws leading to different results.

Question 13

What is the core question in choice of law questions?

Answer 13

Which State’s law will govern?

Question 14

What is the core answer to the core question for choice of law questions?

Answer 14

The governing law is the law selected by the forum court according to its choice of law approach.

Question 15

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?

Answer 15

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.

Question 16

What are the three main analytical approaches to choice of law?

Answer 16

1) The Vested rights approach of the 1st RST;

2) The most significant relationship approach of the 2nd RST;

3) The Interest Analysis approach

Question 17

In the Vested rights approach (traditional approach), the following three analytical steps are taken:

Answer 17

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.

Question 18

In a basic structured answer of a choice of law answer, what are the three paragraphs?

Answer 18

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.

Question 19

What is the rule statement for a vested rights approach?

Answer 19

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.

Question 20

What is the rule statement for an Interest Analysis?

Answer 20

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.

Question 21

What is paragraph 3’s structure for Vested Rights approach?

Answer 21

Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.

Question 22

What is paragraph 3’s structure for Interest Analysis?

Answer 22

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

Question 23

What is the rule statement for Most Significant relationship approach?

Answer 23

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.

Question 24

What is paragraph 3’s structure for most significant relationship approach?

Answer 24

Discuss connecting facts

Discuss policy principles

Choose governing law based on most significant relationship

Apply the governing law to determine result

Question 25

What are the typical policy principles for most significant relationship approach?

Answer 25

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

Question 26

Which approach is insensitive to the substantive area coupled with choice of law question?

Answer 26

Interest Approach!

Both Vested Rights and the Significant Relationship Approaches analysis is adjusted to the substantive law.

Question 27

What is the Vested Rights rule for torts?

Answer 27

The governing law is the law where the injury occurred.

Question 28

What are the factual connections for significant relationships approach for torts?

Answer 28

Place of injury

Of the conduct causing injury

Where the parties are at home

Where the relationship, if any, is centered

Question 29

What are the policy connections for significant relationships approach for torts?

Answer 29

The relevant policies of the forum State AND

The relevant policies of other connected States

Question 30

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:

Answer 30

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.

Question 31

What is paragraph 3’s structure for Vested Rights approach?

Answer 31

Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.

Question 32

What is the Vested Rights rule for Contracts?

Question 33

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:

Answer 33

It is valid AND express

Question 34

The choice of law provision may be deemed invalid for two reasons?

Answer 34

1) The law selected has no reasonable relationship to the contract

2) The provision was included without true mutual consent

Question 35

What are the two rules for vested rights approach under contract?

Answer 35

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.

Question 36

What is paragraph 3’s structure for Vested Rights approach?

Answer 36

Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.

Question 37

What are the factual connections for significant relationships approach for Contracts?

Answer 37

The place of contracting

The place of negotiating

The place of performance

The place where the parties are at home

Question 38

What are the policy connections for significant relationships approach for Contracts?

Answer 38

The relevant policies of the forum State

The relevant policies of other connected States; AND

The reasonable expectations of the parties

Question 39

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?

Answer 39

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.

Question 40

If a marriage is valid where performed it will be recognized as valid:

Answer 40

Everywhere.

Question 41

The forum State applies what laws for divorce?

Answer 41

Its own divorce laws.

Question 42

What are the two defenses to choice of law?

Answer 42

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

Question 43

How is domicile of an individual determined?

Answer 43

1) physical presence

2) Intent to remain indefinitely.

Question 44

What is paragraph 3’s structure for Vested Rights approach?

Answer 44

Categorize the substantive area of law; state the applicable vesting rule in the facts; apply the facts to the rule; conclude the result.