Conflicts of Laws

Question 1

Conditions for Recognition of Judgments Question

Answer 1

1) A judgment has been entered by a court in one jurisdiction; and
2) A party is seeking to have that judgment recognized by a court in a different jurisdiction

Question 2

Sister State Recognition Questions

Answer 2

1) Are the requirements for Full Faith and Credit satisfied?
2) Are there any defenses?

Question 3

Sister State Recognition: Are the Requirements for Full Faith and Credit Satisfied?

Answer 3

1) Jurisdiction - The rendering state must have had jurisdiction over the parties and jurisdiction over the subject matter
>Exception - Where the issue of jurisdiction has been fully and fairly litigated, the jurisdictional determination is itself entitled to full faith and credit.
2) On the merits - The judgment entered by the rendering state must have been on the merits.
>Note - a default judgment treats all factual contentions as admitted and is therefore on the merits for full faith and credit recognition of judgment purposes.
3) Finality - The judgment entered by the rendering court must be a final judgment.

Question 4

Sister State Recognition: Are there any Defenses to Full Faith and Credit?

Answer 4

The following are valid defenses to full faith and credit:

1) Penal Judgments - a penal judgment is not entitled to full faith and credit.
>Except tax judgments

2) Extrinsic Fraud - A judgment obtained by extrinsic fraud is not entitled to full faith and credit. Extrinsic fraud is fraud that could not be corrected during the regular course of proceedsing leading to the judgment.

Question 5

Foreign Judgment Recognition

Answer 5

If the rendering court is a foreign country, then the source of the obligation to recognize the judgment is comity or treaty.

Comity - A recognizing court will exercise discretion to decide whther the foregin judgment should be recognized. Many of the same principals as full faith and credit will be considered.

Question 6

Conditions for Choice of Law Questions

Answer 6

1) The lawsuit involves factual connections with multiple states; and
2) The multiple states will have different laws leading to different results.

Question 7

Restrictions on Choice of Law

Answer 7

1) Constitutional - The Constitution imposes a limit only is a state’s law is chosen that has no significant contact with and/or legitimate interest in the litigation.

2) Statutory - If the forum state has a statute that directs a choice of law, then the forum court shoudl apply that statute instead of the usual choice of law approach.

Question 8

Choice of Law: Analytical Approaches

Answer 8

1) Vested rights approach of the First Restatement
2) The most significant relationship approach of the Second Restatement
3) The interest analysis (governmental interest) approach

Question 9

Choice of Law: Vested Rights Approach of the First Restatement

Answer 9

1) Characterize the area of substantive law
2) Determine the particular choice of law rule
3) Localizing the rule to be applied

Question 10

Choice of Law: Most Significant Relationship Approach of the Second Restatement

Answer 10

Seeks to identify the state having the most significant relationship with respect to the issue at hand and then apply that state’s law on that issue.

Consider the connecting facts in a given case and whether the policy-ordiented principles should be considered.

Question 11

Choice of Law: Interest Analysis (Governmental Interest) Approach

Answer 11

Start with the assumption that the forum will apply its own law. Then, you consider whether the forum has any interest in the litigation; if not, it is a “false conflict” situation and the forum will apply the law of the second state. A question arises when both the forum and the second state have interests; this is a “true conflict” situation.

Question 12

Choice of Law: Basic Structure of a Choice of Law Answer

Answer 12

Three basic paragraphs to a choice of law answer:

1) State the issue and identify the choice of law approach.

2) Describe the choice of law approach.

3) Apply the choice of law approach.

Question 13

Choice of Law: Paragraph One of Answer

Answer 13

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the (fill in applicable choice of law approach).”

Question 14

Choice of Law: Paragraphs 2 & 3: Vested Rights

Answer 14

“Under this approach the court will apply the law of that state mandadted by the applicable vesting rule. That rule is selected according to the relevant substantive area of law.”

(1) categorize the substantive area of law, (2) applicable vesting rule, (3) determine governing law, and (4) determine the result.

Question 15

Choice of Law: Paragraphs 2 & 3: Interest Analysis

Answer 15

“Under this approach the court will consider which states have a legitimate interest in the outcom eof the litigation. The forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of another interested state.”

(1) which states have legitimate interests, (2) characterize the type of conflict (true/false), (3) choose the governing law based on the type of conflict, and (4) apply the governing law to determine the result.

Question 16

Choice of Law: Paragraphs 2 & 3: Most Significant Relationship

Answer 16

“Under this approach the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider connecting facts and policy principles.”

(1) Discuss connecting facts, (2) discuss policy principles, (3) choose governing law based on most significant relationship, and (4) apply the governing law to determine result

Question 17

Choice of Law: Torts: Vesting Rule

Answer 17

The governing law is the law where the injury occurred.

Question 18

Choice of Law: Torts: Significant Relationship Consideration

Answer 18

Factual Considerations:
place: (1) of the injury; (2) of the conduct causing injury; (3) where the parties are at home; and (4) where the relationship, if any, is centered

Policy Principles:
(1) the relevant policies of the forum state and (2) the relevant policies of other connected states

Question 19

Choice of Law: Contracts: Choice of Law Provision

Answer 19

A choice of law provion will be enforced if it is valid and express.

If in doubt on the bar exam, find the provision invalid.

Two reasons to find the choice of law invalid are:
1) The law selected has no reasonable relationship to the contract.
2) The provision was included without true mutual consent.

Question 20

Choice of Law: Contracts: Vesting Rules

Answer 20

Rule 1: If the case is about FORMATION, you apply the law of the place of contracting.
>Examples of formation issues include: (1) capacity; (2) contractual formalities; and (3) consideration.

Rule 2: If the case is about performance, you apply the law of the place of performance.
>Examples of performance issues include: (1) the time, place, and manner of performance; and (2) excuses for nonperformance.

Question 21

Choice of Law: Contracts: Significant Relationship Considerations

Answer 21

Factual Considerations:
(1) the place of contracting; (2) the place of negotiation; (3) the place of performance; and (4) the palce where the parties are at home

Policy Principles:
(1) the relevant policies of the forum state; (2) the relevant policies of the other connected states; and (3) the reasonable expectations of the parties.

Question 22

Conflict of Laws on the MEE

Answer 22

Conflict of Laws (“COL”) is tested on the MEE, but never as a standalone subject (i.e., it can appear as part of an essay on a different subject)
>COL can arise with any MEE subject, but most frequently arises with Civil Procedure and, less frequently, Family Law, Torts, or Estates
>When tested, COL usually counts for around just 30% of the score for the single essay for which it arises

Answering COL on the MEE - if COL comes up in an essay, your goal should be to recognize the COL issue(s) and be prepared to discuss and anaylze key concepts
>It is highly unlikely that specifically detailed, nuanced COL issues will be tested

How to study COL and what to know - know key concepts and how to discuss applicable COL theories. Specifically, you should be able to discuss:
>Full Faith and Credit Clause
>COL theories/approaches
»Unless a question asks you to analyze COL under a given approach, be prepared to briefly discuss the different theories/approaches and which a court would likely apply

Question 23

Full Faith & Credit Clause

Answer 23

Under the Full Faith & Creidt Clause (“FFCC”) of the U.S. Const., a state court judgment must be recognized and enforced in other states
>I.e., a court in one state may not retry an issue that was properly decided in another state court proceeding
>Note - if an issue is barred from re-litigation by virtue of the FFCC, it is unneccesary to do a further COL analysis
>Although FFCC applies only in state courts, use the same analysis when federal courts are the issuing and/or recognizing court

Analysis - courts must give full faith and credit to prior proceedings of U.S. states/territories unless there is a valid defense to recognition or enforcement
>Valid defenses - a court is not required to enforce another state’s judgment if either:
»Lack of jurisdiction (“jx”) - requirements:
»>i. Prior court did not have proper jx over parties and/or subject matter; and
»>ii. Party challenging prior court judgment did not litigate the jx issue in the prior court
»b) Not on the merits - prior judgment was not on the merits (i.e., it did not involve the substance of P’s claim)
»c) No final judgment - prior court judgment was not final

Question 24

Choice of Law Theories

Answer 24

When a transaction or event is connected to more than one jurisdction, and potentially-applicable laws differ, a COL is required to determine which law to apply.

3 approaches - generally states use one of the following COL tests:
1) Vested Rights Approach of the First Restatement
2) Most Significant Relationship Approach of the Second Restatement
3) Governmental Interest Approach

Diversity cases - a federal court exercising diversity jx over non-federal claims must apply the COL approach of the state in which it sits

Question 25

Recognition of Foreign Judgments

Answer 25

Recognition of forein judgments - judgments of forein nations are not given full faith and credit, but may be recognized on comity principles (i.e., voluntary recognition)
>Factors - in choosing whether to recognize a foreign judgment, courts look at:
»1) Did the foreign court have jx?; and
»2) Were fair procedures used in adjudicating the case?
>If foreign judgment is recognized, it is enforced the same as another state’s valid judgment would be

Question 26

Vested Rights Approach

Answer 26

Under the First Restatement’s Vested Rights Approach, the court applies the law of the forum where the act occured or the relationship that gave rise to the lawsuit developed.
>Last act - most often, rights vest in the state where the last act or event occurred that gave rise to the rights being asserted in the lawsuit.

Substantive areas of law - depending on the area of substantive law at issue, the following usually dictates the forum whose law will apply:
>Torts - court applies law of the forum where the injury occurred (specifically where the last event giving rise to liabilty occurred)
>Contracts - court applies law of the forum where the K was formed unless the dispute involves performance
»If performance is at issue, court will apply law of the forum in which performance was due
>Property - court applies law of the forum where property is located
»Tangible property - court applies law of the forum where property was located at the time of the relevant transaction
>Corporations - where issue involves internal corporate affiars, court will apply law of the forum where corporation is incorporated

Question 27

Most Significant Relationship Approach

Answer 27

Under the Second Restatement’s Most Significant Relationship Approach, the court applies the law of the forum that has the most significant relationship to the issue at hand
>Factors - in determining which forum has the most significant relationship, courts consider the following general factors:
»1) Relevant policies of the forum and other interested jxs;
»2) Relevant policies underdlying the substantive field of law;
»3) Ease of applying the law to be applied; and
»4) Whether application of a given law will aid certainty, uniformity, and predictability

Substantive areas of law - courts look atm ore specific factors depending on the type of case
>Torts - courts look at place of injury and conduct that caused the injury, as well as residence/domicile/place of incorporation of the parties
>Contracts - courts look at place of contracting, negotiation, performance, location of subject matter of K, domicile/residence/place of incorporation of the parties
»Generally, if place of negotiation and performance are the same, that forum’s laws will be applied
>Property - courts apply the law of the state most significantly related to the property transaction
>Corporations - courts apply the law of the forum where the corporation is incorporated

Question 28

Governmental Interest Approach

Answer 28

Under Governmental Interest Approach (a.k.a. “Interest Analysis Approach”), the court analyzes policies behind the conflicting laws in each forum and how these policies would be furthered by application to the case at hand.

How it works:
>Courts start with the presumption that its forum’s laws should apply
>The court may also:
»1) Examine the policies behind its laws and those of the other forum invovled
»2) If another forum has an interest, court will reconsider its forum’s policies to consider if it has a legitimate interest in applying its own laws
>Court may then apply the other forum’s laws, its forum’s laws, or a modified version of either

Substantive areas of law - the approach and analysis does not vary or have additional factors based on specific areas of law

Note - if the Governmental Interest Approach arises on your exam, simply be prepared to discuss each forum’s interest in having its laws applied given the facts presented

Question 29

Contractual Choice of Law Provisions

Answer 29

Express choice of law provisions in Ks are generally adhered to regardless of the COL approach that would be applied by a court
>Where no choice of law provision exists, courts will use one of the three COL approaches

Exceptions - choice of law provisions in the K will not be applied or honored where:
>Contrary to public policy - applying the law of the K-designated forum would conflict with a fundamental policy of a different forum that has a materially greater interest than the designated forum in determining the particular issue
>No substantial relationship - contracting parties’ chosen forum bears no substantial relationship to the parties or the transaction, such that there is no reasonable basis for the choice (look for bad faith)
>Lack on consent - no true consent by all parties to the choice of the designated forum
»Can arise due to fraud, mistake, or Ks of adhesion

Default rules - Express choice of law provisions are always enforced with regard to default (as opposed to “mandatory”) rules. Default rules are mere gap fillers that can be modified by agreement of the parties even in entirely local matters.

Question 30

Recognition of Divorce Judmgents

Answer 30

Courts will give full faith and credit to divorce decrees issued in another state if:
1) The decree is valid in the other state; and
2) The other state had propert jx
>Satisfied if one of the spouses is domiciled inthe state that granted the divorce

Ex parte divorce - divorce based on domicile of only one spouse
>Enforcing court may examine questions of domicile in determining whether full faith and credit should be given to the issued decree
>Rebuttable presumption exists that spouse domicile is bonda fide

Consent divorce - where both spouses are properly domiciled in the initial court granting divorce, full faith and credit will be given to the prior divorce decree if the prior court had proper jx
>Jx will be found when at least one spouse is domiciled in the forum

Child custody - governed by reciprocal statutes adopted by all states
>Generally, court has jx to make a custody determination if it is the child’s home state; all other states must give that determination full faith and credit
>Court making decree retains jx and no other state can modify the determination unless the original court had no significant connection with the child or parties in dispute