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Bar Exam > Conflicts of Law > Flashcards

Conflicts of Law Flashcards

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1
Q

First step: what court can decide the case?

A

Civil procedure rules of subject matter and personal jurisdiction

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2
Q

Full faith and credit for state judgments

A

Full faith and credit requirements met
Any defenses to full faith and credit
Effects of recognizing the sister state and who will be bound by it

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3
Q

Full faith and credit requirements

A
  1. proper jurisdiction in the rendering court
  2. judgment must be o the merits
  3. judgment must be final
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4
Q

Proper jurisdiction requirements

A

rendered by a court with PJ, SMJ. Exception: bootstrap doctrine - question of jurisdiction fully and fairly litigated in original action, determination is res judicata and therefore entitled to full faith and credit

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5
Q

Judgment on the merits requirements

A

Judgment is not on merits: based on lack of jurisdiction over the defendant, plaintiff’s lack of capacity, misjoinder of parties, improper venue, time bars like statute of limitations.
Default and consent judgments are on the merits.

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6
Q

Final judgment requirements

A

Whether any further judicial action by the rendering court is necessary to resolve the litigation.
Modifiable judgments usually not final.
Modifiable as to future installments (child support) may be final as to past installments, with latter installments enforced by sister state

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7
Q

Defenses to full faith and credit

A 
Penal judgment (judgment punishing offense against the public)
judgment subject to equitable defense in rendering state (judgment obtained by extrinsic fraud)
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8
Q

Insufficient defenses

A

tax judgment
contrary to public policy of enforcing state
rendering court made a mistake of law or fact

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9
Q

Effect of sister state judgment recognition

A

Res judicata effects: merger of cause of action into judgment; bar against P suing on same cause of action when judgment favored D; collateral estoppel as to issue resolved in first litigation (causes of action different but issue of fact same) as long as issue actually litigated as is essential to first suit’s outcome

Mutuality: question of a stranger to the first action can rely upon collateral estoppel

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10
Q

Enforcement of judgment

A

if entitled to full faith and credit, must be enforced, even if granted erroneously (as long as error is not a defense to full faith and credit)

Law of enforcing state governs method of enforcement

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11
Q

Judgments of federal courts and administrative tribunals

A

Administrative tribunals: generally entitled to full faith and credit. Applicable to federal court by statute. Recognition of judgment required between state and federal courts, as well as between two federal courts

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12
Q

Recognition of foreign country judgments

A

Comity or Uniform Foreign Money-Judgments Recognition Act (or treaty)

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13
Q

Comity

A

voluntary recognition of judgments by a foreign country but is discretionary. Some states have a reciprocity requirement.
Court looks to:
foreign court had jurisdiction
fair procedures were used in adjudicating case (enforcing state’s standards used)

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14
Q

Uniform Foreign Money-Judgments Recognition Act

A

granting or denying a sum of money generally subject to this act. does not cover taxes, penal judgments, judgments for alimony or child support

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15
Q

Divorce recognition requirements

A

jurisdictional requirements met: one of the spouses domiciled in state granting divorce

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16
Q

Ex parte divorce

A

Rebuttable presumption as to domicile: can delve into domicile when evaluating full faith and credit. Person attacking domicile has the burden of proof

Lack of jurisdiction: recognizing state, having jurisdiction over both parties, deems lack of jurisdiction state will not give full faith and credit. Subsequent marriage by either would be bigamous - exceptions: courts may adjudicate both parties’ rights to marital property within forum if state has minimum contacts; custody under UCCJA and UCCJEA if rendering state is child’s home state

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17
Q

Consent divorce

A

mere fact of PJ of both spouses does not give a sufficient jurisdictional basis to satisfy full faith and credit. Even if both appear voluntarily. At least one spouse must be domiciled in forum.
If PJ of both and one domiciled, divorce judgment will be entitled to full faith and credit (bilateral divorce) - give full faith and credit as well to ancillary matters like property rights, alimony, and child custody

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18
Q

Estoppel against collateral attack

A

Generally: any interested person may collaterally attack the validity of another state’s divorce decree.

certain people estopped:
parties to prior proceedings
privies of parties (daughter of father)
persons who accept a foreign divorce and remarry in reliance thereon

Divorce judgment cannot be attacked by stranger if stranger would have no standing to challenge in state of its rendition

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19
Q

Alimony, property rights, child custody breakdown

A

Bilateral divorce: generally conclusive as to alimony, property rights, child custody

Ex parte divorce: grants only the divorce, generally nothing else. Must be settled by court having PJ over both parties (doctrine of divisible divorce). Can deal with property within that forum state though with sufficient minimum contacts. Child custody enforceable if state qualifies as child’s home state.

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20
Q

Right to remarry

A

parties validly divorced in one state can remarry despite existence of prohibition against remarriage in state where divorce obtained

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21
Q

Foreign country divorce judgments

A

court will extend comity if domicile requirement met. Everything else same as for sister state judgments.

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22
Q

Domicile requirements

A

Domicile by choice

Domicile by operation of law

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23
Q

Domicile by choice

A

Physical presence
Intention to be domiciled - remain permanently or for indefinite period. Motive does not matter.
(both are questions of fact)

24
Q

Domicile by operation of law

A

person has certain legal incapacity (children and incompetents)

25
Q

Children’s domicile

A

follows that of custodial parents. Minor can establish another one by emancipation or marriage

26
Q

Incompetent’s domicile

A

retain domicile of parents. If a person had previously had capacity

27
Q

Constitutional limitations on choice of law

A

Due Process and Full Faith and Credit

If the forum state has significant contacts with parties or subject matter and legitimate interest in regulating outcome, not constitutionally bound to apply foreign state’s conflicting law by either.

28
Q

Vested rights approach (First Restatement)

A

characterize area of substantive law
determine the particular choice of law rule
localize the rule to be applied

Note: forum will generally apply its own law in characterizing issue even if state where issue arose would apply different characterization

29
Q

Most significant relationship approach (Second Restatement)

A

Examine connecting facts and public policy

What are the needs of the interstate or international systems
What are the relevant policies and interests of the forum
What are the policies and interests of the other interested jurisdictions
Are the justified expectations of the parties to be protected
What are the basic policies underlying the particular substantive field of law
Will application of a given law aid certainty, predictability, and uniformity of result
May the determination and application of a specific law be made with ease

30
Q

Interest analysis approach

A

Start with assumption that forum will apply its own law.
Does forum have interest in the litigation? No - false conflict situation, forum will apply law of second state. Yes - true conflict situation, forum reconsider own policies
Legitimate interest: forum will apply its own law
Disinterested forum (and forum non conveniens available): forum should dismiss the case
No forum non conveniens: forum may either make its own value judgment as to which law is better or it may apply the law of the state that most closely resembles its own law
Unprovided-for case (no legit interest): unsettled law, but apply law of the forum

31
Q

Choice of law rules for torts: Vested (First Restatement) approach

A

look to the place of the wrong (of the injury)
Cause of action: the law of the place of the wrong
Vicarious liability: place of the wrong governs questions of vicarious liability
Damages, contribution among joint tortfeasors, survival and abatement of actions, wrongful death: place of the wrong

32
Q

Choice of law rules for torts: Most significant relationships (Second Restatement) approach

A

Look to the place of the injury place where conduct causing injury occurred, domicile, place where relationship of parties centered (the place of injury most important). Also consider policy oriented principles involved
Liability: law of the place with the most significant relationship to the occurrence and the parties
Defenses: charitable immunity - court will look to place of injury and conduct to determine most significant relationship
Vicarious liability, damages, survival and abatement, wrongful death: law of state with most significant relationship
Contribution among joint tortfeasors: most sig related, but if both tortfeasors domiciled in same place, that may win as most sig

33
Q

Choice of law rules for torts: interest analysis

A

Same as with all substantive areas
Liability: look to forum state assuming it had a legitimate interest in applying own law
Damages: state of plaintiff’s domicile has a legitimate interest
Wrongful death: forum state generally apply its own wrongful death statute. SOL, damages, who may sue included in wrongful death will also be applied as general rule

34
Q

Multiple state tort rule

A

Tort injury occurs in more than one state: majority rule - law of plaintiff’s domicile applied (assuming injury also occurred there)

35
Q

Workers Comp rules

A

Gen: states want to apply own worker’s comp where they have jurisdiction.
Look to see if: the employment contract was entered in that state, injury occurred in the state, employee resides in state, employment relationship performed in state
May recover in more than one state, but recovery in one state credited against second state
Wrongful death recovery: Courts will not allow tort suit for wrongful death if already recovered in other state if first state law gives immunity from tort liability

36
Q

Choice of law rules for contracts: express choice of law

A

prevails unless
contrary to public policy
there is no reasonable basis for party’s choice
true consent not given

37
Q

Choice of law rules for contracts: Vested (First Restatement) approach

A

the place where the contract was made controls validity and construction of the contract, and there place where the contract is to be performed governs issues relating to performance
Validity: existence of capacity governed by the law of the place of contracting
Performance issues: generally governed by law of the place of performance
Rights and powers of third parties: look to the law of the place of making the contract to determine rights of third party beneficiaries and whether the contract can be assigned

38
Q

Choice of law rules for contracts: Most significant relationship (Second Restatement) approach

A

What are the needs of the interstate or international systems
What are the relevant policies and interests of the forum
What are the policies and interests of the other interested jurisdictions
Are the justified expectations of the parties to be protected
What are the basic policies underlying the particular substantive field of law
Will application of a given law aid certainty, predictability, and uniformity of result
May the determination and application of a specific law be made with ease

Plus

place of contracting, negotiation, and performance; the location of the contract subject matter; domicile of parties.

Land contracts controlled by law of situs (creating or transferring interest in land only, but not things like real estate broker listing agreement)
Personalty contracts are controlled by place of delivery
Insurance contracts controlled by law of insured’s domicile
casualty insurance controlled by law of the location of the insured risk
loan contract law of the place where repayment is required

Validity: capacity governed by law of the place where the party whose capacity is in question is domiciled. Formalities that meet requirements where parties executed the contract will usually be applicable.
Rule of validation: state’s law that serves to uphold contract will apply

Performance issues, rights and powers of third parties: state with most significant relationship

39
Q

Choice of law rules for contracts: Interest analysis approach

A

Start with assumption that forum will apply its own law.
Does forum have interest in the litigation? No - false conflict situation, forum will apply law of second state. Yes - true conflict situation, forum reconsider own policies
Legitimate interest: forum will apply its own law
Disinterested forum (and forum non conveniens available): forum should dismiss the case
No forum non conveniens: forum may either make its own value judgment as to which law is better or it may apply the law of the state that most closely resembles its own law
Unprovided-for case (no legit interest): unsettled law, but apply law of the forum

40
Q

Choice of law rules for property: real property analysis

A

First and Second Restatement: look to the law of the situs (possible under Second Restatement to find a more significant relationship)

Interest: less emphasis on situs

41
Q

Choice of law rules for property: personal property

A

First and Second Restatement: look to law of the situs at time of the relevant transaction

If intangible: look to “situs of the debt” - domicile of the debtor

42
Q

Choice of law rules for property: administration of trusts

A

generally governed by the law of the place where the trust is administered

43
Q

Choice of law rules for inheritance

A

by intestacy: governed by lex situs. Questions of validity of the will, rights of nonmarital or adopted children, marital rights in land.

Determined by deceased domicile at the date of death

44
Q

Choice of law rules for marriage

A

Valid where celebrated: valid everywhere (void is void everywhere)

Exception: violation of a prohibitory rule of the domicile of one of the parties and the parties immediately return to and become domiciled in the state

45
Q

What is a prohibitory rule versus a directory rule

A

Directory rules: requiring marriage license, parental consent, certificate of blood test (violation will not render marriage invalid)

Prohibitory rules: express the strong public policy of the state (incest, polygamy, marriage under a minimum age)

46
Q

Annulment rules

A

governed by the law of the place where the marriage was celebrated (although there is a trend to most significant relationship to marriage)

47
Q

Choice of law: divorce

A

Governed by law of plaintiff’s domicile (the forum state)

Premarital agreement: usually governed by state where it was entered into or state with most significant relationship to parties

48
Q

Choice of law: Child’s status

A

attempts to legitimate: father’s domicile
recent trend is child’s domicile

Property incidents of status:
First restatement: law governing disposition of property in question
Second Restatement: look to law of state creating status to decide property incidents unless public policy states otherwise

49
Q

Choice of law: adoption

A

own local law to govern adoptions. Property incidents of adoption same as for child’s status

50
Q

Choice of law: corporations

A

First Restatement: law of the place of incorporation
Second Restatement: also for place of incorporation for many conflicts questions
Interest analysis: same as for other subject matters

51
Q

Arguments against application of a foreign law

A

Procedural law - forum applies its own (burdens, SOL, privileges, rebuttable presumptions)
Law is against forum’s public policy (RARE - forum would apply its own; interest analysis does not allow this, will apply public policy affirmatively to determine if its own law should be applied)
Law is penal or tax law -
First Restatement: could be a valid defense that foreign state’s law was a tax or penal law
Second Restatement: prohibit penal laws

52
Q

Depecage

A

First Restatement: forum applies choice of law for everything.
Modern approach: direct forum to apply on each issue separately

53
Q

Renvoi

A

Possible results -
Remission: conflicts rules of second state direct back to the first. Reference to internal law is partial, whole law is total.
Transmission: conflicts rules of second state refer to forum state to the law of third state (may be partial or total)
Neverending Circle: constant references to whole law of each state

Present status: Most states reject renvoi, some accept reference back and apply own law. Renvoi allowed in: validity of marriages, status of parents’ kinship with child, dispositions of interest in land

Federal Tort Claims Act: forum will first refer to place of the act / omission and will apply conflicts rule of that place

54
Q

Conflicts of law: state versus federal law

A

Federal law in state courts: some areas federal courts have SMJ. Some areas state courts permitted to enforce federal law concurrently. Some federal statutes direct state courts to enforce federal rights.

Look for the converse Erie problem: federal substantive rights versus state procedural law that would result in denial of federal right - apply the federal law

State law in federal court: no federal general common law. Federal district courts must apply substantive law of the state where district court sits (Erie) expanded under Klaxon to require application of conflicts of law rules as well

55
Q

Proof of foreign law

A

Traditional view: law of second state is fact.

Today: most states take judicial notice of sister state and federal law - treated as law rather than fact

Foreign country law: must still be proved as fact. Foreign law not proved: either presume foreign law similar to forum law; apply forum law; dismiss action

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