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Conflicts of Law > Conflicts of Law > Flashcards

Conflicts of Law Flashcards

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1
Q

Domicile

A

Place where person has his true, fixed and permanent home

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2
Q

Individual’s domicile of choice

A

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

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3
Q

Domicile of children

A

Follows the custodial parent

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4
Q

Domicile of incompetent persons

A

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

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5
Q

Domicile of corporation

A

state of incorporation

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6
Q

C limit on choice of law rules

A

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.

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7
Q

Statutory directives of choice of law

A

apply those over everything else so long as constitutional

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8
Q

Vested Rights Approach

A

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
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9
Q

Escape devices from vested rights approach

A
  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)
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10
Q

Most significant relationship approach of Restatement 2nd

A

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

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11
Q

Interest Analysis

A
  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
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12
Q

Interest analysis: what to do if true conflict

A

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
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13
Q

Relevant interests: Guest statutes

A

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

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14
Q

Relevant interests: Charitable immunity

A

states that have it: foster charity and charity assets

states not having one: full compensation for tort victims

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15
Q

Relevant interests: Damages limitations

A

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

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16
Q

Relevant interests: dram shop laws

A

states having them: protect people from drunk drivers

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

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17
Q

Relevant interests: strict tort liability

A

States having it: compensating victims

States not having it: low insurance rates and prices

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18
Q

Lex Fori Approach

A

Apply law of the forum

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19
Q

Conduct regulating rules in tort

A

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

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20
Q

Loss Distribution rules in tort

A

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

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21
Q

TORTS: MI approach

A
  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.
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22
Q

Torts: vested rights approach

A

Place of injury

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23
Q

Contracts: Choice of Law provision

A

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.

24
Q

Contracts: MI approach

A

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

25
Q

Contracts: vested rights approach

A

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

26
Q

Contracts: MSR approach

A

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.

27
Q

MSR defaults for contracts: land contracts

A

law of the situs

28
Q

MSR defaults for contracts: personalty contracts

A

law of place of delivery

29
Q

MSR defaults for contracts: life insurance contract

A

law of insured’s domicile

30
Q

MSR defaults for contracts: casualty insurance

A

law of the place where the risk is

31
Q

MSR defaults for contracts: loan contracts

A

law of place where repayment is required

32
Q

MSR defaults for contracts:suretyships

A

law governing the principal obligation

33
Q

MSR defaults for contracts: exceptions

A

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

34
Q

Specific contract issue defaults

A

Cpacity = place of domicile

contractual formalities = place where k entered into

35
Q

Real Property

A

Law of the situs

36
Q

Tangible property

A

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

37
Q

Intangible property

A 
transfers = situs of debt (law of place where the transfer occurred) --> 1st restatatemtn
RST2 = MSR
38
Q

Administration of Trusts

A

transfers of trust property = law of the situs

trust admin = place where trust is administered

39
Q

Transfer of real property under a will

A

law of the situs

40
Q

Other will and intestacy issues

A

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

41
Q

Marriage

A

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.

42
Q

Annulment

A

governed by the place where the marriage is celebrated.

43
Q

Grounds for divorce

A

Plaintiff’s domicile

44
Q

Premarital agreement with no choice of law clause

A

MSR or place where executed

45
Q

Child’s status

A

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

46
Q

Adoption

A

court will apply its own law

47
Q

Corporate governance

A

MSR or interest analysis

48
Q

Partnerships

A

follow k law

49
Q

agency

A

place where agency created = issues between A and P

Place where conduct occurred = issues between A and 3rd party

50
Q

Renvoi

A

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

51
Q

Depecage

A

COL for each of the issues presented

52
Q

Full Faith and Credit CLause

A

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

53
Q

Defenses to recognition and enforcement of sister state judgment

A
  • lack of SMJD or PJD (unless issue actually litigated)
  • Judgment not on the merits
  • lack of finality
  • public policy not a defense
54
Q

Judgments of foreign countries

A

generally enforced if

  • court had JD
  • D had reaosnable notice and opporutnity to be ehard
  • faull and fair trial
55
Q

Uniform Foreign Country Money Judgment Recognition Act

A

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

56
Q

MI Borrowing Statute

A

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.

Conflicts of Law (1 decks)

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