Conflicts of Law

Question 1

Domicile

Answer 1

Place where person has his true, fixed and permanent home

Question 2

Individual’s domicile of choice

Answer 2

If person has legal capacity his domicile is the place where he is physically present with the intent to make the place his home permanently. Issue of fact. If more than one dwelling, decide which is primary home

Question 3

Domicile of children

Answer 3

Follows the custodial parent

Question 4

Domicile of incompetent persons

Answer 4

Retains domicile of parents. If only became incompetent later in life, retains domicile of choice

Question 5

Domicile of corporation

Answer 5

state of incorporation

Question 6

C limit on choice of law rules

Answer 6

A states law can constitutionally be applied to a case so long as that state has a significant contact or significant aggregation of contacts creating state interests such that the choice of its law is neither arbitrary or fundamentally unfair.

Question 7

Statutory directives of choice of law

Answer 7

apply those over everything else so long as constitutional

Question 8

Vested Rights Approach

Answer 8

apply the law of the state where the parties’ rights vested. Steps:

1. characterize the type of law
2. Determine the choice of law rule (place of injury, place of contract)
3. Localize the rule

Question 9

Escape devices from vested rights approach

Answer 9

1. characterize the area of law differently
2. reject foreign law on grounds of public policy
3. apply renvoi (applicable state would not apply its own law)

Question 10

Most significant relationship approach of Restatement 2nd

Answer 10

principles considered:
1. needs of interstate judicial system
2. relevant policies and interests of the forum
3. relevant policies and interest of other states
4. protection of justified expectation
5. basic principles underlying the area of law
6. certainty, predictability and uniformity of approach
7. ease of application
RST2 lists states that should be taken into account and applies some default rules

Question 11

Interest Analysis

Answer 11

1. Assumption that forum state will apply.
2. Identify the policies underlying the conflicting laws and determine whether those policies would be advanced by application of the law. Does the state have an interest in its law being applied? If not = false conflict and apply forum law
3. if yes there is a true conflict

Question 12

Interest analysis: what to do if true conflict

Answer 12

Options:

• apply forum law
• apply law of state whose interest would be most impaired by not applying law
• if the forum has no interest —> FNC
• no state has any interest —> law of the forum

Question 13

Relevant interests: Guest statutes

Answer 13

states having one: protect insurers from collusion and owners from actions by guests
State not having one: compensating tort victims

Question 14

Relevant interests: Charitable immunity

Answer 14

states that have it: foster charity and charity assets

states not having one: full compensation for tort victims

Question 15

Relevant interests: Damages limitations

Answer 15

states having them: keep insurance rates low and encourage economy
states not having them: compensating victims and discouragin conduct

Question 16

Relevant interests: dram shop laws

Answer 16

states having them: protect people from drunk drivers

states not having them: put responsibility on driver and protect business

Question 17

Relevant interests: strict tort liability

Answer 17

States having it: compensating victims

States not having it: low insurance rates and prices

Question 18

Lex Fori Approach

Answer 18

Apply law of the forum

Question 19

Conduct regulating rules in tort

Answer 19

Regulate how a party is supposed to act in a particular situation (speed limits). Apply the law of the place of injury.

Question 20

Loss Distribution rules in tort

Answer 20

Allocate losses resulting from tortious conduct. Apply choice of law rules to these.

Question 21

TORTS: MI approach

Answer 21

1. Apply MI law unless a rational reason exists to apply the law of another state or country
2. To determine rational reason—> i. identify any foreign state interest and ii. balance the interests of MI with that state.
3. factors to consider in determining if foreign state has an interest:
   i. where application of law is constitutional
   ii. whether the foreign state would apply its own law
   iii. whether application of the foreign law will further the law’s policies.

Question 22

Torts: vested rights approach

Answer 22

Place of injury

Question 23

Contracts: Choice of Law provision

Answer 23

generally will be followed unless there is no reasonable basis for the parties’ choice because the chosen state bears no substantial relationship to the parties or transaction or the law chosen is contrary to fundamental policy of a state with a materially greater interest in the issue.

Question 24

Contracts: MI approach

Answer 24

In flux. Movement towards either MSR approach, interest analysis or approach similar to tort approach.

Question 25

Contracts: vested rights approach

Answer 25

Place where contract was made governs validity and construction of contract place where k is to be performed governs performance

Question 26

Contracts: MSR approach

Answer 26

Look to 7 policy factors. Plus place of k and place of performance, place that is subject matter of k, and domiciles and places of business of the parties.

Question 27

MSR defaults for contracts: land contracts

Answer 27

law of the situs

Question 28

MSR defaults for contracts: personalty contracts

Answer 28

law of place of delivery

Question 29

MSR defaults for contracts: life insurance contract

Answer 29

law of insured's domicile

Question 30

MSR defaults for contracts: casualty insurance

Answer 30

law of the place where the risk is

Question 31

MSR defaults for contracts: loan contracts

Answer 31

law of place where repayment is required

Question 32

MSR defaults for contracts:suretyships

Answer 32

law governing the principal obligation

Question 33

MSR defaults for contracts: exceptions

Answer 33

the defaults control unless it can be shown that another state has a more significant relationship

Question 34

Specific contract issue defaults

Answer 34

Cpacity = place of domicile | contractual formalities = place where k entered into

Question 35

Real Property

Answer 35

Law of the situs

Question 36

Tangible property

Answer 36

law of situs = creation, effect and transfer of interests in tangible PP law of domicile or decedent = transfers by operation of law upon marriage or death

Question 37

Intangible property

Answer 37

``` transfers = situs of debt (law of place where the transfer occurred) --> 1st restatatemtn RST2 = MSR ```

Question 38

Administration of Trusts

Answer 38

transfers of trust property = law of the situs | trust admin = place where trust is administered

Question 39

Transfer of real property under a will

Answer 39

law of the situs

Question 40

Other will and intestacy issues

Answer 40

decedent's domicile at death If will tells executor to sell real prop ---> doctrine of equitable conversion and real prop treated as personalty

Question 41

Marriage

Answer 41

A marriage valid where celebrated is valid everywhere. Exception is where the marriage is valid at palce of celebration but violates a prohibitionary rule of the domicile of one of the parties if the parties return to be domiciled there.

Question 42

Annulment

Answer 42

governed by the place where the marriage is celebrated.

Question 43

Grounds for divorce

Answer 43

Plaintiff's domicile

Question 44

Premarital agreement with no choice of law clause

Answer 44

MSR or place where executed

Question 45

Child's status

Answer 45

law of mother's domicile at time of birth. Subsequent changes to status valid if valid under the law of the father's domicile

Question 46

Adoption

Answer 46

court will apply its own law

Question 47

Corporate governance

Answer 47

MSR or interest analysis

Question 48

Partnerships

Answer 48

follow k law

Question 49

agency

Answer 49

place where agency created = issues between A and P | Place where conduct occurred = issues between A and 3rd party

Question 50

Renvoi

Answer 50

When figuring out which states law to apply do you take the whole states' law including their COL rules?

Question 51

Depecage

Answer 51

COL for each of the issues presented

Question 52

Full Faith and Credit CLause

Answer 52

courts of a state must give the same effect to judgment of a sister state that the rendering court would give. Statute govern fed court judgements

Question 53

Defenses to recognition and enforcement of sister state judgment

Answer 53

- lack of SMJD or PJD (unless issue actually litigated) - Judgment not on the merits - lack of finality - public policy not a defense

Question 54

Judgments of foreign countries

Answer 54

generally enforced if - court had JD - D had reaosnable notice and opporutnity to be ehard - faull and fair trial

Question 55

Uniform Foreign Country Money Judgment Recognition Act

Answer 55

Makes foreign court judgment enforceable like a sister state judgment. Does not apply to tax judgments, penal judgments, domestic relations judgments. Then apply comity.

Question 56

MI Borrowing Statute

Answer 56

Whichever SOL time-bars a P's claim (statute of state where injury occurs or MI statute) should apply except when the P is a MI resident, in which case MI SOL applies. Look to time of the injury.