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Conflicts of Law AOG > Conflicts of law > Flashcards

Conflicts of law Flashcards

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1
Q

Forum - Concept

A

jdx where action is pending

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2
Q

Domicile - Concept / Relevance

A
  • One’s fixed/permanent/principal home - Establishes personal jdx
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3
Q

Domicile elements (2)

A

1) Physical Presence 2) Intention to remain indefinitely -(not forever) (no minimum time - established immediatly)

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4
Q

Difference domicile / residence

A
  • permanency - possible mx residences but only 1 domicile at the time - residence also refers to physical location
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5
Q

Gral Rule of Personal Jurisdiction and domicile

A

Courts of your domicile have personal jurisdiction over you

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6
Q

Exception to gral rule of pjdx over domicile

A

Divisible Divorce Rule

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7
Q

Divisible Divorce Rule

A

-Court with jdx to decide on divorce even when 1 spouse with residence in different forum. - Doesn’t apply to other related issues (prop division, alimony, child custody, support issues) - decided by courts where pjdx can be established on both parties.

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8
Q

Cases where court declines to see on its forum (despite of jdx and no constitutional issues) (3)

A

1) Uphold Choice of forum contract provision 2) Forum non conveniens 3) When improper forum shopping by parties

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9
Q

Choice of law systems - Concept

A

System to decide what law should forum court apply to decide the case + Constitutional limitations + Restriction to apply foreign law

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10
Q

Types of choice of law systems (3)

A

1) Traditional restatement (vested rights) 2) “Interest Analysis” approach 3) Modern 2nd restatement - used by majority

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11
Q

Vested rights - 2 tears of application

A

1) Bright line rules

+

2) Escape devices (avoid rigidity of rules)

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12
Q

Vested rights - Bright line rules for torts

A

Location of last event necessary to create liability

  • grally where injury occured
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13
Q

Vested rights - Bright line rules for Contracts

A
  • Formation issues: where it was made
  • Performance issues: where performance rendered
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14
Q

Vested rights - Bright line rules for property

A
  • Real prop: location - Personal prop: where transaction occured
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15
Q

Vested rights - Bright line rules for corporation

A
  • formation/dissolution/internal affairs: place of incorporation - 3rd party dealing: case-to-case as if corp was person.
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16
Q

Vested rights - Escape Devices (RADS)

A
  • Renvoi (“sendback”): use forum law despite choice of law rules apply law of other jdx - Areas of substantive law change: how to qualify act - Depecage (“cutting up”): - Substance vs Procedure: procedure under forum law
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17
Q

Interest Analysis approach gral

A
  • Focus on policy underlying - Q: Wether each state involved has a legitimate state interest based upon contacts with case? - No distinguishment of substantive vs procedure
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18
Q

Interest Analysis - Contacts with case elements CUT

A
  • Contact with case - “Unprovided for” or “No interest” - True Conflict: apply forum law
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19
Q

Interest Analysis - “Contact with case”

A
  • ????????
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20
Q

Interest Analysis - “Unprovided for” or “no interest”

A
  • “False or apparent conflict”: when the state offering the protection has no actual interest in the endorsement of that protection against the particular parties to the case - “unprovided-for case” is one in which each party is seeking to apply the law of the other state - apply forum law
21
Q

Interest Analysis - “True conflict”

A

“True conflict”: one state offers a protection to a particular party that another state does not, and the court of the state that offers no such protection is asked to apply the law of the state offering the protection - Court needs to balance different state interests - If interests balanced: apply forum law

22
Q

Modern 2nd restatement

A
  • Based on “most significant relationship” (MSR) criteria
  • Use of gral factors for MSR + connecting factors for specific situations
  • Similar use of depecage than in vested rights
  • Subst vs Proc: Procedure under forum law - include SOL unless unreasonably shorter
  • Trumped by on-point choice of law statute
23
Q

Modern 2nd restatement - MSR gral factors FINEBUD

A
  • Forum’s policy
  • Interested states’ policies and interests
  • Needs of interstate and international system
  • Expectations of parties
  • Basic policies of relevant field of law
  • Uniformity, certainty, predictability
  • Determination and ease of application
24
Q

Modern 2nd restatement - Connecting factor for torts CRIP

A
  • Conduct that caused injury
  • Relationship among parties
  • Location of injury suffered
  • Location of parties
25
Q

Modern 2nd restatement - Connecting factor for contracts SOPP

A
  • Subject matter location
  • Offer/Acceptance location
  • Parties’ place
  • Performance place
26
Q

Modern 2nd restatement - Real Property

A

Significant relation - in practice: location of real estate law

27
Q

Modern 2nd restatement - Corps

A
  • For Formation/dissolution/internal affairs: place of incorporation
  • For 3rd party dealing: choice of law
28
Q

Modern 2nd restatement - Choice of law statute

A

If on-point trumps 2nd statement.

29
Q

Choice of law - Intestate sucession

A
  • real prop: law of location
  • personal prop: law of decedent’s final domicile
30
Q

Choice of law - validity of Marriage

A
  • law of where officially celebrated UNLESS serious violation of court forum (i.e. poligamy, incestuous)
  • ven for CL marriage
31
Q

Choice of law - Grounds for divorce/dissolution/marriage

A
  • Forum law always (ojo con divisible divorce rule)
32
Q

Choice of law - Child custody and support

A

As established in prenuptial agreements - some states have over-riding laws

33
Q

Choice of law - Affirmative defenses/ counterclaims / liability issue/

A

Case to case - possibly different law for the different causes of actions

34
Q

Choice of law - Proof of foreign law

A
  • Courts to take judicial notice of as issue raised by parties (include copy + explanation) - Fed Courts: FRCP: parties notify + court use any source to resolve issue (even if not admissible or submitted by party)
35
Q

Choice of law - Defenses against application of foreign law (3)

A

1) Local Public Policy violation: when law inherently vicious, wicked , inmoral 2) Law is “penal” in nature (criminal law, civil fines) except for punitive dx 3) Revenue laws (despite of possible full faith and credit of tax judgment)

36
Q

Choice of law - CX Limitations (2)

A

1) Due Process: not arbitrary or fundamentally unfair 2) Full Faith and Credit

37
Q

Choice of law - By agreement in contract provision

A
  • Enforced when agreed on in good faith even when no connection btwn jdx/contract - [Avoid renvoi by indicating use of internal laws]
38
Q

Choice of law - Fed/State Conflicts (2)

A

1) Extend Erie (fed court in diversity) doctrine to apply choice of law statute of forum where located 2) Federal supremacy: trumps state law

39
Q

Full Faith and Credit Clause

A
  • Gral right for foreign court to have its judgment recognized + enforced
  • Even when judgment is flawed due to error in law/fact
  • Restrict collateral attack at different forum
  • Between fed/state courts
  • Art IV section 1 of C
40
Q

Full Faith and Credit Clause Exceptions 5+ 1

A

1) Lack of jdx from original court (unless previously raised an solved favorably)
2) Judgment not on the merit
3) Judgment not final (appeals pending or not exhausted)
4) Penal judgment (criminal, civil fine)
5) If inconsistent judgements - only to most recents

+ Violation of Public policy

41
Q

Full Faith and Credit Clause for Divorce Judgment

A
  • Gral rule: FullFC when dissolving marriage (divisible divorce rule) - Exception: Pjdx can be re-litigated even if solved in original court.
42
Q

Full Faith and Credit Clause - Claim/Issue preclusion

A

Forum court required to use original court law to solve issue of preclussion

43
Q

Full Faith and Credit Clause for International judgment

A
  • not expressly included, application of doctrine of comity - Most courts equate them to foreign state courts judgments - Some states require reciprocity of recognition
44
Q

Statutory Full Faith and Credit

A
  • For family judgments not considered final because of review - not entitled to C FullFC. - States and Fed laws regulate these judgments
45
Q

Statutory Full Faith and Credit Clause examples

A

1) Child Custody judgments 2) Abducted child or other wrongful conduct 3) Child support judgment

46
Q

Statutory FFC - Child Custody judgments

A
  • PKPA + UCCJEA prevent interstate custody battle + deter custody related abductions + sets forum where kid and child have closest connection
  • Court can decline jdx if inconvenient
  • Courts prohibited to modify visit/custody order by out-of-state court
47
Q

Statutory FFC - Child Custody judgments - Requirements for court to have jdx (4)

A

1) Home-state jdx : residence child/ or was for at least 6 months before action started + at least one parent/guardian still resident
2) Emergency jdx: child physically present in state and risk of abuse/abandonment
3) Significant connection jdx: of child or at least one parent (PKPA - only if home-state not possible)
4) Vacuum jdx: no home-state jdx + best interest of the child

48
Q

Statutory FFC - Child Support judgments

A
  • UIFSA: FFC to judgment as long as 1 parent remains in home state + no possible modification by other state court (unless both parents object to original court jdx)
49
Q

Statutory FFC - Abducted child or other wrongful conduct

A

Forum court can decline if abduction took place on another state or if parent engaged in similar wrongful conduct before

Conflicts of Law AOG (1 decks)

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