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Conflict of Laws > Lecture > Flashcards

Lecture Flashcards

1
Q

Domicile of the decedent is used to choose the law to be applied to determine _________ succession of personal property.

A

intestate

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2
Q

Domicile at death determines which state gets _________ taxes.

A

estate

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3
Q

True or False: Domicile of an individual gives subject-matter jurisdiction for a divorce.

A

True.

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4
Q

Legal _______ is needed to make a domicile of choice

A

capacity!

standard: the ability to fend for yourself

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5
Q

________ speak louder than ___________.

A

Actions; Words

-what you DO counts for more than what you say when INTENT is concerned!

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6
Q

A person can only have ______ domicile; if a person has multiple residences, the ____________ one is considered that person’s domicile.

A
  • ONE

- primary

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7
Q

T/F: Once obtained, a domicile of choice is kept until another one is acquired.

A

True.

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8
Q

The motive for going to another state to acquire domicile is ________________.

A

absolutely IRRELEVANT

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9
Q

When will domicile be assigned by operation of law, and what are they key situations this might arise?

A

if a person has no legal capacity to acquire a domicile of choice
Key situations: domicile of a child or mental incompetent

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10
Q

What are the rules re: domicile by operation of law?

A
  1. If a person does not have legal capacity to get a domicile of choice, the child or mental incompetent will have the domicile of that person’s parents or guardian.
  2. If parents are divorced, domicile is that of the parent who has physical custody/primary residence.
  3. If a person has a validly acquired domicile BEFORE becoming mentally incompetent, that person will retain that domicile of choice during the period of incompetency.
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11
Q

Sister State Judgments:
If jurisdiction was fully and fairly litigated in the rendering court that determination IS entitled to FF&C by the recognizing court _____________________ .

A

EVEN IF IT WAS WRONG!

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12
Q

Two MODIFIABLE (aka not final) judgments to remember

A
  1. future spousal support
  2. future child support

BE CAREFUL: judgments for amounts already accrued and in arrears are considered final judgments!

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13
Q

Sister State Judgments:
If a judgment is __________ it is not a final judgment and gets NO FF&C, but it will usually still be enforced under principles of _________.

A

modifiable

comity

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14
Q

Judicial comity

A
  • a term where the courtesy of the court that respects a judicial decisions of another state.
    (courtesy; complaisance; respect; a willingness to grant a privilege, not as a matter of right, but out of deference and good will)
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15
Q

Judgments on appeal are not final judgments _________ the rendering state would allow ________ of the judgment pending appeal

A
  • unless

- enforcement

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16
Q

Situations that are on the merits for FF&C purposes

A
  1. default judgments
  2. consent judgments

Theory: since the parties in these two situations had the opportunity to go to a judgment on the merits they are so considered here.

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17
Q

Controlling law on all three FF&C requirements is the ____________ state law

A

RENDERING

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18
Q

Hypo: Roberta sued John on a debt in Arizona and now seeks to enforce her judgment in Virginia. John concedes that jurisdiction was proper in Arizona, but would not have been proper in Virginia. Who wins, and why?

A

Roberta wins, because it is the rendering state law (Arizona) that controls, not the recognizing state law (Virginia)

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19
Q

What two defenses actually work today?

A
  1. judgment is a penal judgment

2. extrinsic fraud

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20
Q

T/F: A punitive damage award is a penal judgment.

A

False!

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21
Q

Give two examples of penal judgments

A
  • criminal sanction

- civil fine

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22
Q

A later judgment ______ be enforced even though it is inconsistent with a valid earlier one.

A

CAN!

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23
Q

Hypo: Jane sued Jill in State A; State A rendered a judgment in Jill’s favor. Jane then went to State B with the same cause of action against the same party and State B rendered a judgment in Jane’s favor. State B did this even though the State A judgment was entitled to full faith a credit. Jane now goes to State C seeking to enforce the State B judgment against Jill. Can Jane enforce this judgment in State C?

A

Yes!

SCOTUS rule: enforce the last judgment in time

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24
Q

Foreign Country Judgments:
To determine whether the foreign country judgment meets the two-part comity test, use _____________ state’s law (meaning, use that state’s idea of due process).

A

the recognizing

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25
Q

In family law, which types of judgments have their own different jurisdictional requirements?

A
  • divorce
  • spousal support & child support
  • child custody
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26
Q

A valid divorce requires proper SMJ and this requires that _______ of the two spouses be domiciled in the state rendering (handing down) the divorce.

A

ONE

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27
Q

T/F: No weighing of the interests of the states is needed. As long as a state meets the “significant contact(s) giving legitimate interest” test, then its law can be applied, EVEN THOUGH another state might have MORE of an interest.

A

TRUE

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28
Q

What are two situations that do not meet the significant contact(s) giving legitimate interest test?

A
  1. If, after the event in question, someone MOVES to a new state, and that move creates the ONLY contact with that state, then it would be UNCONSTITUTIONAL to apply that state’s law.
  2. If the ONLY contact with the parties or the litigation is that the suit is brought in a state, then it would be UNCONSTITUTIONAL to apply that state’s law.
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29
Q

Which choice of law approach does Virginia use?

A

The vested rights approach (First Restatement)

30
Q

Vested Rights Approach

A

(aka: the territorial approach)
The law to be applied is the law where the rights of the plaintiff VESTED, and each area of the law has rule(s) to answer this!
Always points to a single place

31
Q

4 steps to choose the law under vested rights approach

A
  1. List the different ISSUES that you have in the problem
  2. Characterize the AREA of law involved in the problem (e.g. torts, K, property, family law, etc.)
  3. Find the VESTING RULE in that area of the law
  4. See if there are any EXCEPTIONS to application of the law chosen by the rule.
32
Q

Choice of Law: Vested Rights Approach

Torts & Rules Regulating Conduct

A

For all rules regulating conduct under all three approaches, apply the law of the place of the CONDUCT (aka rules of the road)

33
Q

Choice of Law: Vested Rights Approach

Torts & Loss Distribution Rules

A
  1. If the rule is a loss distribution rule, and the alleged tort is one of defamation, apply the law of the PLACE OF PUBLICATION.
  2. If rule is a loss distribution rule, the choice of law is made by applying the vested rights approach–the law of the place of the wrong.
34
Q

T/F: Parties can always choose the law in the K for matters of K construction.

A

True

35
Q

Choice of Law: Vested Rights Approach & CONTRACTS

What three things must exist for parties to choose the law that governs the matters of K validity?

A
  1. Choice can’t be contrary to the fundamental policy of the state whose law would otherwise be chosen
  2. There must be a substantial relationship to the parties or the transaction.
  3. The choice must be free of duress (aka not a K of adhesion)
36
Q

Choice of Law: Vested Rights Approach & CONTRACTS

Special Forum Rule

A

Cases with facts falling under control of the UCC are governed by the law of the FORUM so long as the forum has a substantial relationship to the transaction

37
Q

Choice of Law: Vested Rights Approach & CONTRACTS

Does the rule of alternative reference apply?

A

VERY NARROW - comes up in usury cases

Courts in usury cases will apply the law of the state that would govern the K of the transaction so long as the state has SOME relations to the transaction

38
Q

Choice of Law: Vested Rights Approach & CONTRACTS

What law do you apply if the issue is K validity and the parties did not choose a body of law and the special forum rule nor the alternative reference rule apply?

A

Apply the law of the place of the making of the K!

- aka where the signing ceremony took place

39
Q

List some issues related to the VALIDITY of a K

A
  • formalities (writing? signed? notarized?)
  • offer, acceptance, and consideration
  • capacity of the parties
  • misrepresentation and fraud
  • interpretation of the K
40
Q

Choice of Law: Vested Rights Approach & CONTRACTS

If the issue is NOT K validity, but one of K performance, you choose the law of the place of ______________!

A

Performance!
Such as:
- was performance adequate?
- by whom was performance supposed to be made?
- what is the manner, time and place of performance?
- any excuses for non-performance?

41
Q

Choice of Law: Vested Rights Approach & RP

For issues about the land sale contract…..

A

Just use the contract rules, duh.

42
Q

Choice of Law: Vested Rights Approach & RP

For the deed and every other issue relating to the conveyance of real property, choose the law of the _______ of the property.

A

situs, that is the law of the place where the property is situated/located

43
Q

Choice of Law: Vested Rights Approach

Personal Property

A

For every situation BUT ONE, use the same situs rule as for real property. For PP, this means the location of the property at the TIME of the relevant transaction

Exception: REMEMBER, if the issue is passing of PP by intestate succession, the state chosen is the state of the deceased’s domicile at DEATH

44
Q

Choice of Law: Vested Rights Approach & Personal Property

If the personal property issue comes under the UCC and its rules on secured transactions, the law chosen is the state of the debtor’s _____________ or ___________ of ______________.

A

domicile or place of residence

45
Q

Choice of Law: Vested Rights Approach & Family Law

Marriage general rule & exception

A

If a marriage is valid where performed, it is valid everywhere.

EXCEPTION: if a marriage would violate the strong public policy of a state then it may not be recognized even though it was valid where performed.

46
Q

Choice of Law: Vested Rights Approach & Family Law

Marriages Void Where Performed

A

ARE VOID EVERYWHERE
but if a marriage is void because it failed to comply with some technical/formal requirement of the state where performed, it can still be recognized if it would have complied with the forum rule

47
Q

Choice of Law: Vested Rights Approach & Family Law

Divorces are governed by the law of ______________.

A

The plaintiff’s domicile

48
Q

Defenses to Choice of Law

A
  1. The law chosen is procedural, not substantive
    - proc= burden of proof & statutes of limitation
    - sub= contributory/comparative negligence, statute of frauds, & parol evidence rule
  2. The law is against the public policy of the forum state
  3. The law is a penal law
49
Q

T/F: Embedded (incorporated) statutes of limitations-part of the state substantive law giving a cause of action- are considered substantive.

A

True

50
Q

Borrowing Statute

A

Will borrow, and apply, the SHORTER statute of the state where a cause of action arose

51
Q

Use of State Law in Federal Courts

When case is transferred for convenience of the parties:

A

the court to which the case is transferred must apply the law of the state in which the transferor court sits

52
Q

Notice and Proof of Foreign Law
Courts will take judicial notice of sister-state and federal law, but the law of a foreign country traditionally is _________ which must be ________ and _______.

A
  • a fact
  • pleaded
  • proved
53
Q

Notice and Proof of Foreign Law

If the foreign country law cannot be determined, the forum court will apply ______________ law.

A

the forum

54
Q

T/F: A Virginia court will use VA law to decide whether a matter is substantive or procedural, and it will apply VA law if the matter in question is procedural.

A

True.

55
Q

T/F: A Virginia court will always apply VA law to a question of the admissibility of evidence.

A

True.

56
Q

T/F: The law of the place of performance governs capacity to contract if it differs from the law of the place of contracting.

A

TRUE!

Under the general common law rule, the law of the place of contracting determines capacity to contract. HOWEVER, there are two old Virginia cases that have not been overruled, which make this statement TRUE!

57
Q

T/F: The formalities and validity of a K are governed by the law of the place of contracting.

A

True

58
Q

T/F: The sufficiency of performance and any excuse for nonperformance is governed by the law of the place of performance.

A

True

The details of performance are also governed by the law of the place of performance.

59
Q

T/F: If the UCC does NOT specify the applicable law, the parties’ choice of law governs.

A

True.

60
Q

Three general limitations on party autonomy in choosing a K provision specifying the state law that governs the K

A
  1. the choice must not have been obtained by unfair means (misrepresentation, duress, undue influence, mistake);
  2. the contract must have a “reasonable relation” to the state chosen, or the parties must have a reasonable basis for the choice; and
  3. the law of the state chosen must not be contrary to the public policy of the state whose law otherwise would govern (e.g. place of contracting or place of performance)
61
Q

T/F: A Virginia court will not apply an express choice of law provision in a contract if the law of the state chosen is contrary to the public policy of the state whose law otherwise would govern.

A

True.

62
Q

Rule of Validation

A

A court will apply the law of the state that will sustain the validity of a transaction as long as that state has SOME relation to the transaction.

63
Q

T/F: A Virginia court will apply the law of the second state if the injury is a result of the alleged tortfeasor’s action in a state where that action was required or privileged.

A

True. This is an exception to the general rule that substantive tort issues are governed by the law of the place of the wrong.

64
Q

Define: law of the place of the wrong

A

The state where the last event takes place that is necessary to make the actor liable in tort. Generally, this is the place of injury!

65
Q

What is Virginia’s general choice of law approach to tort cases?

A

A Virginia court will apply the state law of the “place of the wrong,” where the last event necessary to make the actor liable for the tort took place.

66
Q

T/F: If acceptance is by telephone, where the party offering speaks is the place of contracting.

A

FALSE!!!

If acceptance is by telephone, where the party ACCEPTING speaks is the place of contracting.

67
Q

Under the First Restatement approach, the place of contracting is the state where the final act that makes the contract binding occurs. List the five examples!

A
  1. if the contract is effective upon delivery, it is the place of delivery.
  2. if the issue is renewal, it is where the document is when the old one expires.
  3. if acceptance is by telephone, it is where the party accepting speaks
  4. if acceptance is by mail, it is the place where the acceptance is mailed.
  5. if the contract is to be delivered by agent, it is where the agent delivers it.
68
Q

T/F: Performance is governed by the place of contracting.

A

FALSE!

The details of performance are governed by the law of the place of performance.

69
Q

Details of performance include…

A
  1. the manner, time, and locale of performance;
  2. by whom and to whom performance is made;
  3. the sufficiency of performance; and
  4. excuse for nonperformance.
70
Q

Ordinarily, statutes of limitations are regarded as ________ and governed by __________.

A
  • procedural

- the law of the forum

Conflict of Laws (1 decks)

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