Conflicts of Law Flashcards
Choice of Law: What methods do you use when there is a conflict between State and Federal Law?
Erie Doctrine and/or Supremacy Clause
Choice of Law: What methods do you use when there is a conflict between State’s laws?
1) Territorial Approach of the First Restatement,
2) Gov’t Interest Analysis, or
3) Most Significant Relationship Approach of the Second Restatement
Choice of Law: Conflict Between States - Territorial Approach of the First Restatement + Remember These Substantive Areas of Law: Torts, Contracts, and Property
1) CHARACTERIZE area of substantive law (e.g. contract, tort),
2) DETERMINE THE RULE of that particular substantive area of law,
3) LOCALIZE the rule that applies (e.g. if the law where the accident occurred governs, one must determine where the accident occurred under the facts)
Remember:
Torts - The law of the place of wrong determines whether a person has sustained a legal injury
Contracts - The law of the place of contracting determines the validity and effect of a promise
Property - The law of the place where the property is located
Choice of Law: Conflict Between States - Governmental Interest Analysis + Remember: (i) False Conflict, (ii) Apparent and True Conflicts, (iii) Disinterested Forum, and (iv) Unprovided for Case
IDENTIFIES POLICIES and EVALUATES CONTACTS underlying competing laws to determine which law applies
Remember: (i) False Conflict - If one state has an interest and the other does not, the court should apply the LAW OF THE INTERESTED STATE,
(ii) Apparent and True Conflicts - Court should ascertain if a “more moderate and restrained interpretation” of the policy or interest of one state will avoid the conflict, if so apply the LAW OF THE INTERESTED STATE, if not, conflict is unavoidable and FORUM LAW
(iii) Disinterested Forum - If the forum court has no interest, but determines two or more states do, the forum can dismiss the case pursuant to the doctrine of FORUM NON CONVENIENS (if not available, either apply law they think is best OR most looks like forum law)
(iv) Unprovided For - If no state has an interest, the FORUM LAW should govern
Choice of Law: Conflict Between States - Most Significant Relationship Approach of the Second Restatement + Considerations Used in Analysis
Combines the policies and connecting factors for various types of lawsuits to pinpoint the jurisdiction with the “most significant relationship” to the dispute
Considerations: (i) needs of interstate and international systems, (ii) relevant policies of the forum, (iii) relevant policies of other interested states, (iv) party’s expectations, (v) basic policies in field of law, (vi) the objectives of certainty and predictability, and (vii) ease of determining and applying law
Choice of Law: Conflict Between States - The Pennsylvania Approach
1) Identify two or more states that have conflicting laws,
2) Apply the law of the state with the GREATEST INTEREST in the issue (evaluate contacts each state has with the transaction), and
3) Only apply those contacts that relate to the policies and interests underlying the particular issue before the court are relevant
Strategy for Bar Exam
1) Identify there is a conflict of laws,
2) Explain the PA hybrid approach that combines GIA and the 2nd Restatement Approach,
3) Perform first steps of GIA (look for goals behind laws and compare them to contacts)
4) If after GIA, there is a true conflict, approach with 2nd Restatement analysis, evaluate the connecting factors in light of the policies of section 6 (emphasize policies behind a particular field of law, not ease of applying a law or general principle of serving interstate systems)
Special PA Rules: Property Rules
For ALL COL APPROACHES, the situs of the property will generally provide the governing law for issues of respecting the property
Special PA Rules: Contract Provisions - COL Clauses + Exceptions (UCC v. Common Law)
PA honors the law’s basic policy of carrying out the contracting parties’ intent to choose expressly a governing law for their disputes
UCC: So long as the chosen jurisdiction bears a REASONABLE RELATION to the transaction
Common Law: Section 187 of 2nd Restatement says it should not be enforced if there is NO SUBSTANTIAL RELATIONSHIP between the chosen law and the parties or transaction AND NO REASONABLE BASIS for the choice
Special PA Rules: Contract Provisions - Choice of Forum Clauses + Remember Unreasonableness Exception
While private parties may NOT contract to PREVENT a court from asserting its jurisdiction, a court of proper venue and jurisdiction should nonetheless decline to proceed with a case where the parties have freely agreed that the litigation should be conducted in another forum
Remember: If the agreement is NOT REASONABLE at the time of litigation, the rule does not prevail
Special PA Rules: Contract Provisions - Marriage
Place of Celebration Rule - The validity of marriage is governed by the place where the marriage was solemnized
Special PA Rules: Contract Provisions - Corporations
The law of the state of incorporation is usually applied to determine the duties and liabilities of an officer as well as issues relating to creation or dissolution
Escape Valves for Forum States to Use Their Law: Substance/Procedure Dichotomy
Because forum law governs questions of procedure, a court can escape the application of a foreign state’s law by characterizing it as a procedural issue
Escape Valves for Forum States to Use Their Law: Characterization
Re-characterizing a case to allow the forum to control it (e.g. Contract for the sale of land can be a contract issue or property issue)
Escape Valves for Forum States to Use Their Law: Statute of Limitation
Governed in PA by a statute, known as borrowing statute, this provides that a court should apply the SHORTER of the TWO COMPETING LIMITATION PERIODS
