Conflicts of Law

Question 1

To change domicile a person must?

Answer 1

Abandon previous domicile, establish a physical presence in new domicile, and show an intent for an indefinite time to stay

Question 2

A corporation is domiciled where?

Answer 2

In its state of incorporation

Question 3

What are the 3 approaches to choice of law?

Answer 3

Vested rights, governmental interest analysis, and most significant relationship

Question 4

What is the vested rights approach?

Answer 4

The law of the place where the legal right vested is applied, that is where the last act takes place necessary to give rise to the cause of action.

Question 5

What is the government interest analysis?

Answer 5

A law applies if it would promote the policies and purposes of the law. Presumption that forum state law applies. But a departure is justified when the forum has no interest in the application of forum law and another state does.

First determine if there is a false (only one state interested) or a true (both states are interested) conflict. If false, apply the law of the interested state, if true, then apply the law of the forum state.

Consider: purposes that led to the adoption of the particular law, whether that purpose is implicated by the facts of this case, whether that purpose will be advanced or defeated by application to the relevant facts. If true conflict, different states use different tests to break the tie: substance vs. procedure, comparative impairment, better law (predictability of result, maintenance of interstate and international order, simplification of judicial task, advancement of forum’s governmental interests, better rule of law), contract validation.

Question 6

When is a state interested in applying conduct-regulating laws?

Answer 6

When the wrongful conduct is within their territory or when a state domiciliary is injured anywhere.

Question 7

When is a state interested in applying loss-shifting laws?

Answer 7

When doing so would benefit a state domiciliary.

Question 8

What is the most significant relationship test?

Answer 8

1. Presumptive rule: based on the kind of case (same as First Restatement vested rights approach).
2. Does the state indicated by the presumptive rule have relevant contacts to the case?
   Tort –> place of injury, place of conduct causing injury, domicile of parties, place of relationship between parties.
   Contract –> choice of law provision in contract valid unless the chosen state has no substantial relationship to the transaction or there is no reasonable basis for the choice. If no choice of law provision, apply the law of the state with the most substantial relationship to the transaction.
   Property –> law of the situs.
3. Test this choice against factors of: needs of interstate and international systems, relevant policies of the forum, relevant policies of other interested states, protection of justified expectations, basic policies underlying the field of law, certainty, predictability, and uniformity of result, and the ease in determination and application of the law to be applied.
4. Should we apply depecage or renvoi?

Question 9

What is depecage?

Answer 9

When differest states laws apply to different issues in the case. Not allowed under vested rights, is allowed for the other approaches.

Question 10

What is renvoi?

Answer 10

The forum court’s choice of law rules point to application of foreign law, but those foreign rules refer the matter back to forum law. The forum may accept renvoi by applying the foreign choice of law rules, or reject envoi by applying only the foreign substantive rules. The First Restatement generally rejects envoi, except for (1) questions of title to land, and (2) the validity of divorce decrees.

Question 11

What law applies to tangible moveable property?

Answer 11

The choice of law int he contract OR the place where the property was located at the time of the transactions.

Question 12

What law applies to intangible property?

Answer 12

The law of the state where it was created.

Question 13

What law applies to immovable property at death?

Answer 13

The law of the situs.

Question 14

What law applies to moveable property at death?

Answer 14

The decedent’s domicile unless there is a choice of law provision in the will.

Question 15

Validity of a marriage is based on?

Answer 15

The law where the marriage was celebrated

Question 16

Movable marital property is governed by?

Answer 16

The law of the state where the couple was domiciled at the time the property was acquired.

Question 17

If community property is moved to a non-community property state what is it considered?

Answer 17

Still community property.

Question 18

Will a court enforce penal laws of another state?

Answer 18

No.

Question 19

When can a court refuse to enforce a foreign law?

Answer 19

If it violates a fundamental and strongly held public policy.

Question 20

Procedural issues are?

Answer 20

Always governed by forum law.

Question 21

Parol evidence rule is considered?

Answer 21

Substantive

Question 22

Privilege is considered?

Answer 22

Procedural.

Question 23

Damages are considered?

Answer 23

Substantive but caps are procedural.

Question 24

Statutes of limitation are considered?

Answer 24

Procedural unless inextricably bound up with a substantive right.

Question 25

Fed courts in diversity apply?

Answer 25

The substantive law of the state in which it sits and FRCP. Note, SoL are substantive for Erie purposes. A state law is substantive if it is outcome determinative. A federal court in diversity Must apply the choice of law rules of the state in which it sits (unless transferred from a proper venue).

Question 26

What is the last in time rule?

Answer 26

The later of two valid final judgments is entitled to full faith and credit.

Question 27

If a court has personal jx over one spouse, are its determinations over incidents of divorce entitled to full faith and credit?

Answer 27

No, only incidents of divorce determinations from bilateral divorces are entitled to full faith and credit

Question 28

Jurisdiction-selecting rule for torts

Answer 28

The state where the injury occurred–or the last act necessary to complete the tort (last event rule).

Question 29

Jurisdiction-selecting rule for contracts

Answer 29

Issue of contract formation –> law of the place of contracting

Issue of performance –> law of the place of performance

Parties cannot contract for their own choice of law under the First Restatement.

Question 30

Jurisdiction-selecting rule for parental matters

Answer 30

Issue with legitimacy of child –> law of state in which parent who is at issue lives

Adoption –> law of domicile of child or sometimes the parents

Custody of legitimate children –> law of father’s domicile

Question 31

What are escape devices that courts use to change the applicable law under the First Restatement approach?

Answer 31

Recharacterizing the legal problem, distinguishing between substance and procedure, accepting or rejecting renvoi, rejecting foreign law on public policy grounds, and deploying the rule of validation.

Question 32

What kind of rules are procedural?

Answer 32

Burdens of proof, survival statutes, statutory damages remedies, statutes of limitation

Question 33

Public Policy Doctrine

Answer 33

If application of a different state’s laws would violate some fundamental principle of justice, the forum state will not apply it.

Question 34

What are the requirements for full faith and credit?

Answer 34

States must give the same effect to a judgment as the rendering court would give it. Federal and state courts must give a state court judgment the preclusive effect it would have according to that state.

Req’s:
1. Rendering state had personal and subject matter jurisdiction (if issue actually litigated, then F1 court’s determination is binding even if it didn’t actually have jurisdiction).
2. The judgment was on the merits.
3. The judgment is final.

American courts do not have to give FF&C to foreign judgments. But they can if the foreign court had jurisdiction and was fair.

Question 35

Defenses to giving full faith and credit

Answer 35

1. Penal judgments
2. Extrinsic fraud