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Missouri Bar Prep > Conflicts of laws > Flashcards

Conflicts of laws Flashcards

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1
Q

Conflicts of law

  • Federal Courts
  • Choice of Law
A
  • If the forum is a federal district court sitting in diversity, the court will apply the conflicts rules of the state in which it is Located.
  • If the case is transferred to another district, the court will still apply the conflicts rules of the transferor state.
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2
Q

Conflicts of Law

  • Federal Courts generally
  • Full Faith and credit
A

– The constitutional requirement is full faith and credit.

  • Same rules apply for state and federal courts. Federal courts are required to recognize state judgments by statute.
  • State courts required to recognize federal judgments under supremacy clause.
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3
Q

Conflicts of Law

  • Full Faith and Credit
  • Requirements for judgment.
A
  1. The rendering court must have had proper jurisdiction, both subject matter and personal jurisdiction.
  2. The judgment must have been on the merits.
  3. The judgment must be final.
    - Does not require any further action by the rendering court.
    - The rendering state’s law governs the evaluation as to elements of full faith and credit.
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4
Q

Conflicts of Law

  • Personal jurisdiction
  • Challenges.
A
  • Rendering court must have had personal jurisdiction over the parties.
  • There is only one chance to challenge personal jurisdiction. You cannot re-challenge personal jurisdiction if you challenged in rendering state.
  • If you did not challenge in rendering state, you can challenge collaterally in recognizing state.
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5
Q

Conflicts of Law

- Effect of full faith and credit

A
  1. Plaintiff may not bring suit on the same cause of action when judgment favored defendant.
  2. Collateral Estoppel - In a different cause of action, an issue litigated in the first case and essential to the outcome, cannot be re-litigated.

-

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6
Q

Conflicts of Law

  • Defense to full faith and credit
  • Fraud
A
  • Judgment was procured by extrinsic Fraud.
  • Extrinsic Fraud – Fraud that could not have been dealt with in the earlier case.
  • Intrinsic Fraud Not a defense – Could have been dealt with in the earlier trial within regular workings of the judicial system. (Perjury)
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7
Q

Conflicts of Law

  • Defense to full faith and credit
  • Penal judgment.
A
  • Full faith and credit only applies to civil judgments.

- Criminal judgments are enforced in the state where rendered.

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8
Q

Conflicts of Law
Divorce Decrees
- Personal Jurisdiction
- Full faith and credit

A
  • The rendering court has personal jurisdiction over divorce decree if one spouse is domiciled in the state, and if one is not, notice is given.
  • Divorce decrees are given full faith and credit unless jurisdiction not proper.
  • Party attacking divorce has burden to show that plaintiff to divorce was not domiciled in rendering state.
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9
Q

Conflicts of Law
Divorce Decree
- Estoppel against collateral attack

A
  • Attacking party may be estopped. 1. Persons subject to personal jurisdiction in the earlier proceeding.
    2. Persons who played a meaningful role in the earlier proceeding.
    3. Persons who marry or remarry in reliance on the earlier proceeding .
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10
Q

Conflicts of Law

- Jurisdiction over ancillary property matters

A
  • Jurisdiction is proper if there was Personal Jurisdiction over the spouse whose property rights were at issue.
  • The person must have done one significant thing in the state, related to the lawsuit.
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11
Q

Conflicts of Law

- Jurisdiction over Child custody matters

A
  • Jurisdiction is proper if the rendering court is that of the child’s home state.
    • Child’s home state is the state where child has lived for last six months.
      - If kid has bounced around.
  2. Home state will be the state where child has significant connection.
    - Court does not need personal jurisdiction over the other spouse to render child custody judgment.
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12
Q

Conflicts of Laws

-Continuing exclusive jurisdiction

A

Once the home state enters a custody or support order, that issuing state retains continuing exclusive jurisdiction.

  • No other state can modify that order as long as one of the parents continues to live in the issuing state.
  • All the states can enforce the child support order, it just cannot be modified under changed circumstances.
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13
Q

Conflicts of Law

-Divisible divorce doctrine

A

If the divorce decree is proper but ancillary awards are improper, (Usually due to lack of personal jurisdiction over kids or parent) the law severs the valid divorce from the other parts, and gives full faith and credit to the divorce.

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14
Q

Conflicts of Law

- Domicile

A
  • Home state by choice of one who has capacity.
  • Two part test
    1. Physical Presence in a place.
    2. Intend to be domiciled in that place.
  • Must be there and intend to return. Long temporary stays don’t make one domiciled there.
  • Decedent - At death, home state when die.
  • Children - Child’s home state is the state where child has lived for last six months, if none:
    State where child has significant connection
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15
Q

Conflicts of Law

  • Law for finding requirements for full faith
  • Law for determining substantive law in a case.
A
  • State uses the law of the rendering state to determine if requirements for full faith and credit are met for the judgment.
  • State uses its own choice of law rule to determine what substantive law to apply to a case.
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16
Q

Conflicts of Law

  • Choice of Law
  • Three approaches
A
  1. Vested Rights approach (First restatement).
  2. Most significant relationship approach (Second Restatement).
  3. The Government interest approach.
    - The rule associated with the approach varies with the area of law applicable.
17
Q

Conflicts of Law
Choice of law
- Most significant relationship approach
- General

A
  • The court will look to the Connecting Facts and the Policy of choosing one law over another.
  • Look to connecting facts used in the area of law, and then decide if any policy interest weighs into the balancing of interests.
  • If connecting facts cut one way, policy will have to be stronger. If balanced, policy should tip the scale.
18
Q

Conflicts of Law

  • Choice of law
  • Government interest approach
A

Same test as with most significant relationship approach with minor differences specific to the area of law.

Not as important on bar.

19
Q

Conflicts of Law

  • Choice of law
  • Torts - Vested rights approach
A
  • Vested rights approach - Place of injury.

- Localize the rule to be applied.

20
Q

Conflicts of law

  • Choice of law
  • Torts - Most Significant relationship approach.
A
  • Connecting facts:

a. Place of injury.
b. The conduct causing the injury.
c. Place of the domicile state of the parties.
d. Place where the relationship if any, between the parties was centered.

  • Policy - Most tort law driven by two policies:
    1. Interest in regulating conduct.
    2. To ensure adequate compensation for harmed individuals.
21
Q

Conflicts of Law
Choice of law
- Torts - Tie breaker

A
  • If connecting facts and policy balancing do not produce a decision, tiebreaker rule applies.
  • Most significant - Tiebreaker, use the place of injury.
  • Government interest - Tiebreaker, use the law of the forum state.
22
Q

Conflicts of law

  • Choice of law
  • Contracts - Vested Right approach. (First Restatement)
A
  • Two Rules

a. Contract formation problems – Place of formation (contracting, where signed).
b. Contract performance problems – Place of performance (or primary performance if in more than one state).

23
Q

Conflicts of law

  • Choice of law
  • Contracts - Most Significant relationship approach.
A
  • Connecting Facts
    a. Place of contracting.
    b. Place of negotiation
    c. Place or places of performance.
    d. Place where parties from; domicile, place of business.
    e. Place where the subject matter of the contract, if any is located.
  • Policy - Enforcing agreements, protecting important interests (minors), Compensation of parties, etc.
24
Q

Conflicts of Law

  • Choice of law
  • Contracts
  • Contract provisions establishing choice of law.
  • Two exceptions
A
  • Choice of law provisions generally valid
  • Exceptions
  1. The choice of law provision would allow the parties to do something forbidden by the most interested state and the state law selected has no substantial relationship with the contract or parties.
  2. The choice of law provision violates a fundamental policy of a state with a materially greater interest than the chosen state.
25
Q

Conflicts of Law
Choice of law
- Real Property
- Personal Property

A
  • Real property - all states use the Vested Rights Approach (First Restatement).
  • Apply the law of the situs.
  • This is both for inter vivos transactions and inheritance matters.
  • Personal Property - All Approaches
    1. Inter vivos transactions – Situs at the time of relevant transaction.
    2. Inheritance – Apply the law of the Decedent’s domicile as date of death.
26
Q

Conflicts of Law

  • Choice of law
  • Family law
  • Marriage
A
  • Marriages are not judgments and not entitled to full faith and credit.
  • General Rule - If a marriage is valid where it is gotten (celebrated) it will usually be recognized as valid everywhere.
    • Exception – A state can refuse to recognize a marriage from another state if it involves their domiciles and violates a strongly held public policy of the forum.
27
Q

Conflicts of Law

  • Choice of law
  • Family law
  • Divorce
A
  • Choice of law - Forum applies its own substantive law.
  • At least one spouse must be domiciled in the forum state for proper personal jurisdiction. (see other cards)
  • There are no choice of law issues. The forum always applies its own divorce laws. Since at least one of the spouses is domiciled there it has an interest in having its own laws apply.
28
Q

Conflicts of Law

  • Choice of law
  • Procedural and substantive laws
A

The forum will use its choice of law approach to determine which substantive law to apply.

  • The forum will always apply its own procedural rules.
  • Issue - Statutes of Limitations conflicts.
29
Q

Conflicts of Law

  • Choice of law
  • Procedural and substantive laws
  • Applying statutes of Limitations
  • Which state’s SOL applies
A
  • General Rule – A state will dismiss a case that is filed beyond its own SOL. - If filed within the states time limit, two approaches to the issue.
    1. Traditional Approach – Statutes of limitations treated as procedural. The forum would apply its own rule even if using other substantive law.

The Modern Trend – Treat SOL as substantive matters subject to basic choice of law analysis.
-If the choice of law approach would apply another state’s law, use that state’s applicable SOL.

30
Q

Conflicts of Law

  • Choice of law
  • Procedural and substantive laws
  • Applying statutes of Limitations
  • Two exceptions to the traditional approach
A
  • Traditional Approach – Statutes of limitations treated as procedural. The forum would apply its own rule even if using other substantive law.
    1. Statute Creating substantive right which includes its own SOL. - If the forum is to apply the other state’s statute, the court should apply the whole statute.
    2. Borrowing Statutes - Under these, the forum is directed to borrow the shorter statute of limitations from the state where the cause of action arose.

Missouri Bar Prep (25 decks)

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