Conflicts of Law (MEE)

Question 1

Domicile of Individuals

Answer 1

• Individuals can only have one domicile at a time
• Can occur either by choice or by operation of law

Question 2

Domicile of Individuals: Domicile by Choice

Answer 2

Domicile by choice is where the person is actually physically present with the intent to remain for an unlimited time
* Physical presence: Person need not be present for any specific amount of time, so long as time is coupled with intent to remain
* Intent to remain: Can be demonstrated by non-conclusive factors such as ownership of real estate, voting, payment of taxes, having a bank account, registering a car, etc. Presence under compulsion (e.g., prison) will not establish intent to remain.

Question 3

Domicile of Individuals: Domicile by Operation of Law

Answer 3

Domicile by operation of law occurs when an individual does not have legal capacity to choose a domicile
* Infants: Domiciled where custodial parents are domiciled unless emancipated
* Incompetents: Person lacking mental legal capacity to choose a domicile retains parents’ domicile unless person chose a domicile while competent

Question 4

Domicile of Corporations

Answer 4

State in which it is incorporated

Question 5

Domicile: Continuity and Change of Domicile

Answer 5

• Continuity: Once established, domicile is presumed to continue until new domicile is acquired. Burden of showing change in domicile is on party that asserts it.
• Change: Person with capacity to change domicile is physically present in place with intent to remain. Physical presence and intent must be at same time.

Question 6

Choice of Law: Due Process

Answer 6

Forum state may apply its own law to a particular case only if it has a significant contact or a significant aggregation of contacts with the state such that a choice of its law is neither arbitrary nor fundamentally unfair

Question 7

Choice of Law: Full Faith and Credit

Answer 7

• Requires a forum state to apply law of another state when forum state has no contacts with or interest in the controversy but does not prevent forum state from applying its own law when forum has such contacts or interest
• Does not require a state to apply another state’s law in violation of its own legitimate public policy

Question 8

Party-Controlled Choice of Law

Answer 8

Courts will enforce a contractual COL provision if it is:
* A valid agreement with an effective choice-of-law clause;
* Applicable to lawsuit under terms of contract;
* Reasonably related to lawsuit; and
* Not in violation of public policy of forum state or another interested state

Question 9

Traditional/Vested Rights Approach (First Restatement)

Answer 9

• Rule: Law that controls is law of jurisdiction where parties’ rights were vested (i.e., location where the last act takes place that is necessary to give the plaintiff a cause of action).
• First, court will characterize issues in cause of action as either procedural (forum court will apply its own procedural rules) or substantive (forum court must identify substantive area of law)
• Second, after characterizing issue in cause of action, forum court will determine what forum state’s choice-of-law rules require with regard to characterized issue.

Question 10

Most-Significant-Relationship Approach (Second Restatement)

Answer 10

Rule: Forum court applies law of the state with most significant relationship to issue in question. If there is a tie, forum court will apply forum law.

Three Guiding Principles:
1. Promoting relevant policies of forum and other interested states;
2. Protecting systemic interests (certainty, uniformity, predictability, simplicity)
3. Protecting justified expectations of the parties (applies to planned transactions in contracts, trusts, real property)

Question 11

Governmental Interest Approach

Answer 11

Rule: Presumed that forum state will apply its forum law, but parties may request that another state’s law be applied because that state has a greater interest in the outcome.
* False Conflict: If forum has no interest in the litigation, court appleis law of state that does have an interest.
* True Conflict: If both forum and another state have interest in litigation, forum state reviews its own policies to determine which law should apply. If conflict cannot be resolved, court applies forum state law.

Note: Governmental interest approach has no special rules for particular areas of law. Instead, distinguish between conduct-regulating vs. loss-shifting laws.

Question 12

Governmental Interest Approach: Conduct-Regulating vs. Loss-Shifting Laws

Answer 12

• Conduct-Regulating: States have an interest in apply conduct-regulating law when wrongful conduct occurs within territory of state, causes injury within territory, or when state domiciliary is injured (regardless of where)
• Loss-shifting (determines liability): States have an interest in applying loss-shifting law when doing so would benefit a state domiciliary

Question 13

Governmental Interest Approach: Disinterested Forum

Answer 13

• Forum non conveniens available: Forum state should dismiss case
• Forum non conveniens not available: Forum state may make its own determination as to which law is better to use, or apply law that most closely matches state law

Question 14

Conflict of Law: Federal Diversity Cases

Answer 14

• Federal district courts are generally required to apply the COL rules of the state in which it sits (only to the extent that the state’s rules are valid under the Full Faith and Due Process Clause)
• If a diversity case was transferred from a federal court in another state, first state’s COL rules will be applied

Question 15

Depecage

Answer 15

Approach that allows law of one state to govern one or more issues while other issues are controlled by law of one or more other states

Question 16

Renvoi

Answer 16

When a court applies law of another state, it applies whole law of that state, including state’s COL rules
* Accepting renvoi: Applying other state’s COL rules
* Rejecting renvoi: Ignoring other state’s COL rules

Note: All three approaches reject renvoi, except for issues involving property rights in land, courts generally accept renvoi. In addition, Federal Tort Claims Act requires application of COL rules of place where act or omission took place.

Question 17

Torts: Vested-Rights Approach

Answer 17

Case is governed by law of place where last event necessary to make actor liable for the tort took place (generally the law of the place of injury)

Question 18

Torts: Most-Significant-Relationship Approach

Answer 18

Court will presume place of injury controls unless another state has more significant relationship to parties or tort. Court will consider four important contacts:
* (i) place of the injury,
* (ii) place where conduct causing injury occurred,
* (iii) domicile, residence, place of incorporation, or place of business of parties, and
* (iv) place where relationship is centered.

Question 19

Contracts: Express Choice of Law Provision

Answer 19

If there is an express choice-of-law provision in the contract, then that law will govern unless:
* Contrary to public policy;
* No reasonable basis for parties’ choice; or
* There was fraud or mistake and true consent was not given.

Question 20

Express COL Provisions: Contract Validity

Answer 20

Generally, contract validity cannot be resolved solely by parties’ COL. However, parties can choose law that will apply to contract validity if:
* Chosen state has a substantial relationship to parties or transaction, or
* There is some other reasonable basis for the choice

Note: Choice of law will be ignored if application would be contrary to a fundamental policy of state with most significant relationship to the issue.

Question 21

Contracts: Vested-Rights Approach

Answer 21

Applicable law depends on either where contract was executed or where it was to be performed
* Vests in Place of Execution: Validity, defenses to formation, interpretation
* Vests in Place of Performance: Time and manner of performance, person obligated to perform and person entitled to performance, sufficiency of performance, excuse for nonperformance

Question 22

Contracts: Most-Significant-Relationship Approach

Answer 22

Generally, when location of negotiation and performance are same, forum court will apply law of that state. Othwerise, following factors are considered, in addition to the three guiding principles:
* Location of contracting, negotiation, and performance;
* Place where contract’s subject matter is located; and
* Location of parties’ domiciles, residences, nationalities, places of incorporation, and places of business.

Question 23

Contracts: Default Rules

Answer 23

Generally apply unless another state is found to have more significant relationship with regard to issue:
* Land contracts: Controlled by law of state of situs of land
* Personalty contracts: Controlled by law of state where delivery occurs
* Life-insurance contracts: Controlled by law of state of insured’s domicile
* Casualty insurance contracts: Controlled by law of state where insured risk is located
* Loans: Controlled by law of state where repayment is required
* Suretyship contracts: Controlled by law of state governing principal obligation
* Transportation contracts (covering both persons and goods): Controlled by law of state of departure

Question 24

Property: Immovable (Real) Property

Answer 24

• Immovable property (e.g., land and interest in land) is governed by law of place where property is located, unless governmental-interest approach applies
• Court applies whole law of state, including state’s COL rules (accept renvoi)

Note: Under most-significant-relationship approach, still consider the three guiding principles.

Question 25

Property: Tangible Personal Property

Answer 25

Generally, law of state where tangible personal property is **physically located** at time of transaction, unless UCC or governmental-interest approach applies. **Note**: Under most-significant-relationship approach, still consider the three guiding principles.

Question 26

Property: Secured Transactions

Answer 26

Under the UCC, law governing perfection, nonperfection, and priority of security interests in tangible and intangible collateral is generally **law of the state in which the debtor is located**.

Question 27

Property: Intangible Personal Property

Answer 27

Generally, law of state in which **intangible was created or transfer was made** applies, unless UCC or governmental-interest approach applies. **Note**: Under most-significant-relationship approach, still consider the three guiding principles.

Question 28

Property: Trust Property

Answer 28

* **Transfers of Trust Property**: Governed by general property rules based on type of property * **Administration of Trust**: Governed by law of place where trust is administered

Question 29

Inheritance: Personal Property

Answer 29

Intestate and testate succession is governed by law of **deceased’s domicile at the time of death** **Note**: Many states will enforce a COL clause in a will or trust if it was valid under the law of the place where it was made.

Question 30

Inheritance: Real Property

Answer 30

Intestate and testate succession is governed by **law of situs of real property** **Note**: Many states will enforce a COL clause in a will or trust if it was valid under the law of the place where it was made.

Question 31

Inheritance: Validity of Will

Answer 31

Under UPC, validity is determined under law of place where: * (i) will was executed, or * (ii) testator is domiciled, has a place of abode, or is a national at time of death.

Question 32

Corporations: Internal vs. External Affairs

Answer 32

* **Internal Affairs** (rights and obligations): Governed by law of state of incorporation * **External Affairs** (transactions with third parties): Corporation is treated like a natural person **Note**: Under most-significant-relationship approach, courts consider the corporation's place of incorporation and principal place of business

Question 33

Family Law: Marriage

Answer 33

Marriages are valid **where they took place** and are recognized in all other states. **Exceptions**: * If a marriage violates a particularly **strong public policy** of the domicile of either party, however, it will be invalid. * If parties **immediately return** to state where marriage would have been prohibited and become domiciled there, marriage will be void

Question 34

Family Law: Divorce

Answer 34

Questions of law relating to grounds for divorce are controlled by **law of plaintiff’s domicile** If there is a **premarital agreement**: * Most states apply law of state with most significant relationship to matter at hand * Some states apply law of state in which premarital agreement was executed

Question 35

Family Law: Legitimacy

Answer 35

Governed by law of domicile of parent whose relationship to child is in question

Question 36

Family Law: Adoption

Answer 36

Forum court applies its own state law

Question 37

Workers' Compensation

Answer 37

* Any state with a **legitimate interest** in an injury and its consequences may apply its WC act * Employer and employee may contractually agree to apply a particular state’s law unless doing so would violate **public policy** of another state with a legitimate interest * **Double Recovery**: Subsequent WC award in another state is barred only if there is “unmistakable language by a state legislature or judiciary” barring such recovery

Question 38

Defenses against Application of Foreign Law

Answer 38

Three arguments against application of foreign law (law from another state), that law to be applied is: * Procedural, rather than substantive; * Against public policy; or * A penal law.

Question 39

Defenses: Procedural, Rather Than Substantive

Answer 39

* Forum’s laws of procedure, as determined by forum state’s law, always govern, so long as result is not **arbitrary or so unreasonable** as to constitute a denial of due process or full faith and credit. * **Substantive laws** regulate people’s behavior outside of court; **procedural laws** regulate people's behavior in court

Question 40

Defenses: Law Against Public Policy

Answer 40

* If a foreign law violates public policy of forum state, forum court may refuse to apply that law, unless governmental-interest approach applies * **Narrow defense:** Applies only if enforcement of foreign law would violate forum’s principles of justice or deep-rooted morals or traditions * If successful, claim is dismissed without prejudice * Can be used to reject foreign cause of action, but not a foreign defense

Question 41

Defenses: Penal Laws

Answer 41

A forum state will not enforce another state’s penal laws

Question 42

Recognition of Foreign Judgments: Full Faith and Credit

Answer 42

If **valid judgment** is rendered by court that has **jurisdiction** over the parties, and parties receive proper notice of action and have a **reasonable opportunity** to be heard, judgment will receive same effect in other states as it receives in state where it was rendered

Question 43

Full Faith and Credit: Judgments

Answer 43

Must: (i) have been brought in the **proper jurisdiction**; * Judgment by a court without jurisdiction is not entitled to FF&C, but only if issue of jurisdiction was not actually litigated in original action (ii) be **final**; and (iii) **on the merits** * Includes: judgment after trial, summary judgment, dismissal on the merits, and a default judgment * Excludes: dismissals for lack of jurisdiction and dismissals without prejudice

Question 44

Recognition of Judgments from Foreign Countries: Comity

Answer 44

* Not subject to Full Faith and Credit clause * U.S. courts have discretion to decide whether to recognize foreign country judgments

Question 45

Recognition of Judgments from Foreign Countries: Uniform Foreign Money-Judgments Recognition Act

Answer 45

* **Foreign money-judgments**: Enforceable in same manner as sister state judgments * **Foreign non-money judgments**: Not covered by statute but usually enforced under comity

Question 46

Recognition of Divorce Judgments

Answer 46

Divorce decrees from other states are entitled to full faith and credit as long as original state had jurisdiction to issue decree and decree is valid in original state

Question 47

Recognition of Divorce Judgments: Bilateral Divorce

Answer 47

If court has personal jurisdiction over **both spouses** and **at least one spouse is domiciled in the state**, divorce judgment will be a valid bilateral divorce and will be entitled to full faith and credit.

Question 48

Recognition of Divorce Judgments: Ex Parte Divorce

Answer 48

* Must adhere to SMJ rules and have PJ **over at least one spouse** to dissolve plaintiff's marriage despite lack of PJ over other spouse * Court may not issue binding order affecting personal rights of spouses such as property rights, alimony, and child custody unless other spouse not domiciled in state consents

Question 49

Child Custody and Support Decrees

Answer 49

Under UCCJEA, a court can make initial custody decisions if it is in the **child’s home state**, and all other states must give full faith and credit Can only be modified by a new state if: * Original state no longer has a significant connection to child or parents; and * New court meets test for exclusive jurisdiction