Conflicts of Law

Question 1

what is the full faith and credit clause

Answer 1

Constitutional provision that says a state court judgment must be recognized and enforced in other states
- I.e., a court in one state may not retry an issue that was properly decided in another state court proceeding

Question 2

what are the rendering and recognizing courts

Answer 2

Rendering: the court that issued the original judgement
Recognizing: court where that original judgement is sought to be recognized

Question 3

what are the 2 steps in the analysis to determine if the judgement of a sister state should be recognized in the new state

Answer 3

1) are the requirements of FFC satisfied?
2) are there any valid defenses?

Question 4

what are the requirements for satisfaction of the full faith & credit clause such that the second court needs to recognize the rendering courts judgement

Answer 4

1) rendering court had proper jurisdiction (PJ or SMJ)
2) judgement in rendering state was on the merits
3) judgement in rendering state was final

Question 5

what types of judgements are considered to be “on the merits”

Answer 5

• claims actually decided on the merits, like usually decided cases
• default judgements (treats all factual contentions as admitted)
• consent judgements
• failure to state a claim (w/ prejudice)

Question 6

what types of judgements are not considered to be “on the merits”

Answer 6

• lack of jurisdiction
• improper venue
• misjoinder
• failure to state a claim (w/o prejudice)

Question 7

what is the deal with the prior judgement being “final” for the third requirement of FFC

Answer 7

Judgment is final when no further action by the court is necessary to resolve the litigation
- so something on appeal is not final
- note: if seeking to enforce past payments then that is considered “final”, but seeking to enforce future payments is not final

Question 8

even if all three of the FFC requirements are met, when will the second court still not recognize the prior court’s judgement

Answer 8

1) it was a penal judgement (i.e., any case that is “State v. X”)
2) there was extrinsic fraud (something crazy like the prior judge was bribed)

Question 9

on what basis would judgements from foreign nations be recognized in the US

Answer 9

judgments of foreign nations are not given full faith and credit, but may be recognized on comity principles (i.e., voluntary recognition) at the court’s discretion

Question 10

what factors will a US court look to in determining whether to recognize a foreign nation’s judgement

Answer 10

in choosing whether to recognize a foreign judgment, courts look at:
- Did the foreign court have jx?; and
- Were fair procedures used in adjudicating the case?

Question 11

if a foreign court’s judgement is recognized, how will it be enforced

Answer 11

If foreign judgment is recognized, it is enforced the same as another state’s valid judgment would be

Question 12

when does a choice of law issue arise

Answer 12

1) lawsuit with factual connections to multiple states
2) laws of those diff states would lead to diff results

Question 13

what is the general question a choice of law question is asking

Answer 13

Question: which state’s law will govern?
Answer: the governing law will be chosen according to the forum court’s own choice of law approach (i.e., in State B court, use State B’s choice of law approach to determine if State A or State B’s law will apply to issue at hand)

Question 14

what is the wrinkle when a choice of law issue is in federal court

Answer 14

if it’s a diversity case, they will use the choice of law approach from the state in which they sit

Question 15

how is choice of law figured out when a case is transferred from one federal court to a diff federal court

Answer 15

if it was transferred there from a diff fed court, so long as venue was proper in the transferor (OG) court then transferee (new) court will use choice of law approach from original court’s state

Question 16

what is the three paragraph approach for analyzing a choice of law q

Answer 16

First: state the issue
- i.e., “the issue is which state’s law will govern the outcome of the litigation” and which approach is being used (vested, interest, significant relationship)

Second: define what that approach is
- vested, interest, or significant relationship

Third: apply facts to the approach

Question 17

what are the different choice of law theories

Answer 17

1) Vested Rights Approach (i.e., First Restatement)
2) Most Significant Relationship Approach (i.e., Second Restatement)
3) Interest Analysis Approach

Question 18

how does the vested rights approach (1st restatement) work for choosing which state law will govern the issue

Answer 18

The court applies the law of the forum where the act occurred or the relationship that gave rise to the lawsuit developed
- the rule is then selected accorded to teh relevant substantive area of law

Last act — most often, rights vest in the state where the last act or event occurred that gave rise to the rights being asserted in the lawsuit

Question 19

if you’re doing the vested rights approach for choosing which law is going to govern, if the susbtantive issue is torts what will happen

Answer 19

court applies law of the forum where the injury occurred (specifically where the last event giving rise to liability occurred)

Question 20

if you’re doing the vested rights approach for choosing which law is going to govern, if the susbtantive issue is contracts what will happen

Answer 20

K formation issue: where it was formed
Performance of K issue: where performance did/was supposed to occur

Question 21

if you’re doing the vested rights approach for choosing which law is going to govern, if the susbtantive issue is property what will happen

Answer 21

situs of the property (where it’s located)

Question 22

how does the significant relationship approach (2nd restatement) work for choosing which state law will govern the issue

Answer 22

Factors — basically look to both policy and factual concerns, which slightly vary based on what the substantive issue is; general policy concerns they’ll look to:
- Relevant policies of the forum and other interested jxs;
- Relevant policies underlying the substantive field of law;
- Ease of applying the law to be applied;
- Whether application of a given law will aid in certainty, uniformity, and predictability;
- The needs of the interstate or international system; and
- The justified expectations of the parties

Note: this seems insane/unnecessary to memorize

Question 23

if you’re doing the signficant relationship approach for choosing which law is going to govern, if the susbtantive issue is torts what will happen

Answer 23

Factual Considerations:
- place of injury
- place of conduct causing injury
- where the parties are domiciled

Policy Considerations:
- relevant policy concerns of either state
- note: loss distribution/domicile exception

Question 24

under significant relationship approach for torts, when will the chioce of law possibly not be where the injury occurred

Answer 24

Usually it will be the law of the place where the injury occurred
However, if the the rule at issue is loss distribution, and the parties share a common domocile, then apply the domicile state law
- note: loss distribution rules are things like loss limitations, vicarious liability rules, and immunity rules

Question 25

if you’re doing the signficant relationship approach for choosing which law is going to govern, if the susbtantive issue is contracts what will happen

Answer 25

Factual Considerations:
- place of contracting
- place of negotiation
- place of performance
- domicile

Policy Considerations
- relevant policies of each state (protecting citizens, promoting freedom to contract, etc.)
- rxble expectation of parties

Note: generally, if place of negotiation and performance are the same, that forum’s laws will be applied

Question 26

if you’re doing the signficant relationship approach for choosing which law is going to govern, if the susbtantive issue is real property what will happen

Answer 26

where the property is located

Question 27

if you’re doing the signficant relationship approach for choosing which law is going to govern, if the susbtantive issue is personal property what will happen

Answer 27

Inter vivos transaction: situs at time of transaction

Inheritance: decedent’s domicile at time of death

Question 28

how does the interest analysis approach work for choosing which state law will govern the issue

Answer 28

Courts start with the presumption that its forum’s law should apply
The court may also:
- Examine the policies behind its laws and those of the other forum involved
- If another forum has an interest, court will reconsider its forum’s policies to consider if it has a legitimate interest in applying its own law

False Conflict = only one state has interest
True Conflict = both states do
Doesn’t vary by subsantive issue

Question 29

what are some policy reasons that could be considered in the signficant relationship/interest analysis approaches

Answer 29

• if the parties have a common domicile state, that state’s interest is paramount
• promoting freedom of contracting/expectation state will enforce Ks made there
• protecting minors
• protecting its residents

Question 30

what kind of effect do choice of law provisions in a K have

Answer 30

Express choice of law provisions in Ks are generally adhered to regardless of the COL approach that would be applied by a court

Where no choice of law provision exists, courts will use one of the three COL approaches

Question 31

why would a court not enforce a COL provision in a K

Answer 31

1) contrary to public policy
2) forum they chose has no substantial relationship to the parties/transaction
3) lack of consent (fraud/mistake in formation of K)

Question 32

in all of the choice of law approaches, what law applies for divorce

Answer 32

forum will apply its own divorce laws
- rationale being to get divorced somewhere at least one of the parties needs to be domiciled there

Question 33

in all of the choice of law approaches, what law applies for corporations disputes

Answer 33

law from place of incorporation

Question 34

what is “borrowing statutes” for choice of law when it comes to statute of limitations

Answer 34

court looks at both the forum state’s limitations period and the other state’s period and applies whichever is shorter