Conflicts of Law

Question 1

Full faith and credit requirements

Answer 1

(1) Proper jurisdiction in RENDERING state
(2) Judgment on the merits
(3) Judgment is final

Then court must recognize the judgment.

Question 2

What are the defenses to full faith and credit application?

Answer 2

(1) Penal judgment - ie offense against the public

(2) Subject to equitable defenses - ie fraud

Question 3

What defenses are NOT allowed for full faith and credit application?

Answer 3

(1) Tax
(2) Contrary to public policy
(3) mistake of law or fact

Question 4

Comity

Answer 4

Foreign country judgments recoginzed on a voluntary basis. Look at whether foreign court had jurisdiction or fair procedures used

Question 5

When will court recognize an ex parte divorce?

Answer 5

Subject matter jurisdiction over one spouse
Personal jursidction over one spouse

Rebutable preseumption as to domicile, but court will grant FF&C as to termination of marriage BUT NOT property, alimony or child custody

Question 6

When will court recognize a bilateral divorce?

Answer 6

Subject matter jurisdiction over one spouse
Personal jurisdiction over BOTH spouses
At least one party domiciled in forum state

Court will grant FF&C to termination AND property, alimony and child custody

Question 7

Domicile

Answer 7

Arises by

(1) Choice
(2) Operation of Law

Question 8

Domcile by Choice

Answer 8

(1) Physical present and
(2) intent to be domiciled

Current domicile kept until BOTH elements satisified

Question 9

Domicile by Law

Answer 9

Arises for children, lack of capacity, married women

Question 10

Domicile of corproation

Answer 10

Domicile is state of incorporation

Question 11

Who decides which choice of substantive law to apply?

Answer 11

If there is no constitutional mandate (doesn’t have to give full faith or credit) or statutory directive that controls, choice of law used by the forum court now trying the case to determine which substantive law applies.

Use choice of law approach based on where the state the forum court sits.

Question 12

What are the three choice of law approached

Answer 12

(1) Vest Rights Approach
(2) Most significant relationship approach
(3) Governmental interest approach

Question 13

Analytical approach for Torts

Answer 13

Vested Rights: Place of injury
Sig. Relationship: Consider place of injury, conduct, parties residence, consider all of it
Interest analysis: If no interest then other jurisdiction

Question 14

Vested Rights Approach

Answer 14

Where did the right vest?

Question 15

Most Significant Relationship Approach

Answer 15

Which jurisdiction has most significant interest in outcome of litigation or to the transaction?

Question 16

Governmental interest approach

Answer 16

Forum will apply it’s own laws unless it has no interest - then there is a false conflict and it will apply laws of other jurisdiction

Question 17

Analytical approach for damages

Answer 17

Vested Rights: Place of wrong
Sig. Relationship: Place most related to the case
Interest analysis: If no interest then other jurisdiction

Question 18

Analytical approach for wrongful death

Answer 18

Vested Rights: Place of wrong (not death)
Sig. Relationship: Place most related to the case
Interest analysis: If no interest then other jurisdiction

Question 19

Multiple state torts - what approach?

Answer 19

Apply plaintiff’s domicile if injury also occurred there

Question 20

Analytical approach for contracts

Answer 20

FIRST LOOK for express choice of law provision, if none then:

Vested Rights: If formation issue then place of formation, if performance issue then place of performance.
Sig. Relationship: Place of K formation, performance, negotiation, subject matter location, consider all of it
Interest analysis: If no interest then other jurisdiction

Question 21

Analytical approach for land K

Answer 21

Vested Rights: Place of land
Sig. Relationship: Place of land
Interest analysis: If no interest then other jurisdiction

Question 22

Analytical approach for personal property

Answer 22

Vested Rights: Situs at time of transaction
Sig. Relationship: Situs at time of transaction or signif. relationship found.
Interest analysis: If no interest then other jurisdiction

Question 23

Analytical approach for Family Law

Answer 23

Vest rights and sig relationship:
Marriage - place of celebration
Legitimation after birth - father’s domicile
Adoption - forum

Interest analysis: If no interest then other jurisdiction

Question 24

Analytical approach for corporation

Answer 24

Vest rights and sig relationship:
Place of incorporation

Interest analysis: If no interest then other jurisdiction

Question 25

What procedural laws do you apply?

Answer 25

Forum will always apply its own procedural laws

Question 26

What if law is against forum state’s public policy?

Answer 26

Forum will refuse to apply the law - use this sparingly

Question 27

What is considered “procedural”

Answer 27

(1) Civil rules of procedure
(2) burden of proof
(3) rebuttable presumptions
(4) statutes of limitations
(5) direction action statutes
(6) ability to counterclaim
(7) privileges

Question 28

What is considered “substance”

Answer 28

(1) irrebuttable presumptions
(2) statute of frauds
(3) parol evidence
(4) contribution among joint tortfeasors
(5) Survival of actions
(6) Adverse possession
(7) DAMAGES

Question 29

Depecage

Answer 29

First restatement would say apply substantive law to all the issues. But modern trend is allow different laws to apply to different issues in a single case

Question 30

Renvoi

Answer 30

Refer forum state back to its own law - most states reject this theory.