Conflicts of Law Flashcards
Full faith and credit requirements
(1) Proper jurisdiction in RENDERING state
(2) Judgment on the merits
(3) Judgment is final
Then court must recognize the judgment.
What are the defenses to full faith and credit application?
(1) Penal judgment - ie offense against the public
(2) Subject to equitable defenses - ie fraud
What defenses are NOT allowed for full faith and credit application?
(1) Tax
(2) Contrary to public policy
(3) mistake of law or fact
Comity
Foreign country judgments recoginzed on a voluntary basis. Look at whether foreign court had jurisdiction or fair procedures used
When will court recognize an ex parte divorce?
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
When will court recognize a bilateral divorce?
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
Domicile
Arises by
(1) Choice
(2) Operation of Law
Domcile by Choice
(1) Physical present and
(2) intent to be domiciled
Current domicile kept until BOTH elements satisified
Domicile by Law
Arises for children, lack of capacity, married women
Domicile of corproation
Domicile is state of incorporation
Who decides which choice of substantive law to apply?
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.
What are the three choice of law approached
(1) Vest Rights Approach
(2) Most significant relationship approach
(3) Governmental interest approach
Analytical approach for Torts
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
Vested Rights Approach
Where did the right vest?
Most Significant Relationship Approach
Which jurisdiction has most significant interest in outcome of litigation or to the transaction?
Governmental interest approach
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
Analytical approach for damages
Vested Rights: Place of wrong
Sig. Relationship: Place most related to the case
Interest analysis: If no interest then other jurisdiction
Analytical approach for wrongful death
Vested Rights: Place of wrong (not death)
Sig. Relationship: Place most related to the case
Interest analysis: If no interest then other jurisdiction
Multiple state torts - what approach?
Apply plaintiff’s domicile if injury also occurred there
Analytical approach for contracts
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
Analytical approach for land K
Vested Rights: Place of land
Sig. Relationship: Place of land
Interest analysis: If no interest then other jurisdiction
Analytical approach for personal property
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
Analytical approach for Family Law
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
Analytical approach for corporation
Vest rights and sig relationship:
Place of incorporation
Interest analysis: If no interest then other jurisdiction
What procedural laws do you apply?
Forum will always apply its own procedural laws
What if law is against forum state’s public policy?
Forum will refuse to apply the law - use this sparingly
What is considered “procedural”
(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
What is considered “substance”
(1) irrebuttable presumptions
(2) statute of frauds
(3) parol evidence
(4) contribution among joint tortfeasors
(5) Survival of actions
(6) Adverse possession
(7) DAMAGES
Depecage
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
Renvoi
Refer forum state back to its own law - most states reject this theory.
