Introduction and Choice of Law Theories

Question 1

Conflict of Laws

Answer 1

Concerns the issues that arise from a dispute’s having contact with more than one soverign

Question 2

Interstate and International Choice of Law (Horizontal)

Answer 2

When tow or more co-equal sovereigns are touched –> which laws apply to the case?

Question 3

Choosing between Federal and State Law (Vertical)

Answer 3

Covered in civpro and conlaw in treatment of Erie doctrine and the supremacy clause

Question 4

Three prevailing approaches to horizontal choice of law:

Answer 4

1) Vested Rights Approach (First Restatment)
2) Interest Analysis Approach
3) Most Significant Relationship Approach (Second Restatement)

Question 5

Vested Rights Approach

Answer 5

This is the traditional approach. Also called the territorial approach.

Law applies only within territorial boundaries. So apply the law of the place where the parties’ rights vested (where the last event occurred that was necessary to create the cause of action alleged)

Question 6

Application of Vested Rights Approach

Answer 6

1) Characterize the area of law (tort, contract, prop, family law) and decide if the issue is one of substance or procedure
2) Find the applicable choice of law rule
3) Apply the rule to identify the state whose law governs the issue

Question 7

Applicable Choice of Law Rule for Vested Rights Approach

Answer 7

1) Torts: law of the place where the wrong (injury) occurred (lex loci delicti)
2) Contracts: Law of the place where the contract was made or was to be performed
3) Procedure: Law of the forum

Question 8

Interest Analysis (Government Interest) Approach

Answer 8

Makes choice of law determination on each issue. Begins with the assumption that the forum will apply its own law, but at the request of a party of a party will examine its policies and the policies of other affected states to determine whose law should apply

Analyzes the policies behind the conflicting laws of the relevant states and the extent to which those policies and interests would be advance by the application of the respective states’ laws to the case at hand.

Question 9

Application of the Interest Analysis Approach

Answer 9

1) Identify the policies that underlie the conflicting law.
2) Identify the state interests: determine whether each law’s application in the case at hand would serve the policies that underlie that law (includes a determination whether each state’s policy extends to the circumstances of the case)

Question 10

Consequences of Identifying State Interests

Answer 10

1) Identify false conflicts: apply the law of the only interested state
2) Resolve true conflicts: apply the law of the forum
3) Disinterested forum: apply either the law that is closest to the forum’s law OR choose the better law, OR dismiss for forum nonconvenience
4) Unprovided-for cases (none of the states have an interest in having their laws applied): apply forum law

Question 11

Most Significant Relationship Approach

Answer 11

Apply the law of the state which has the most significant relationship to the occurrence or transaction and the parties

Question 12

Application of the Most Significant Relationship Approach

Answer 12

Determine which state has the most significant relationship to the parties, occurrence, transaction by applying controlling principles and relevant contacts.

Question 13

Controlling Principles of Most Significant Relationship Approach

Answer 13

1) The needs of the interstate and international judicial system
2) the relevant policies of the forum
3) the relevant policies of other interested states and the relative interest of those states in the determination of the particular issue
4) the protection of justified expectations
5) the basic policies underling the particular field of law
6) certainty, predictability, and uniformity of result, and
7) the ease of determining and applying the law chosen.

Question 14

Relevant Contacts under Most Significant Relationship Approach

Answer 14

1) Torts: places where the injury and conduct occurred; place of parties’ domicile, residence, place of incorporation, and place of business; and place where the parties’ relationship is centered
2) Contracts: place of contracting, negotiation, and performance; location of the subject matter of the contract; and place of parties’ domicile, residence, place of incorporation, and place of business
3) Default Rules: 2d RS identifies the state that usually as the most significant relationship with respect to various issues (usually coincide with the 1st RS rules)

Question 15

Federal District Courts

Answer 15

1) In diversity cases, apply the choice of law doctrine of the state where the federal court sits
2) Transferred cases: apply the choice of law doctrine of the transferor court (where the case was originally filed)

Question 16

Constitutional Limits on Choice of Law Decisions

Answer 16

1) Due process - violates due process to take property by using the law of a state which the individual has no contacts with
2) Full Faith and Credit - requires every American state to recognize the law of every sister state (judgments, statutes, and common law)

Question 17

Single Modern Test for Constitutional Limitations

Answer 17

State whose law is chosen must have a significant contact or aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair

Question 18

Under the single modern test, application of a given state’s law is constitutional if:

Answer 18

1) the state has significant contacts with the parties and the occurrence/transaction at issue; and
2) that state has an interest in the events and the outcome of the action