Rules for Specific Areas of Substantive Law

Question 1

What law governs in torts cases under the First Restatement?

Answer 1

The law of the place where the wrong was committed (lex loci delicti)

Note: This is generally the place of injury

Question 2

What law governs in torts cases under the Second Restatement?

Answer 2

Default rule: the law of the place of injury, unless another state has a more significant relationship to the parties or to the tort

Important contacts:

• The place of injury
• The place where the conduct causing the injury occurred
• The domicile, residence, place of incorporation, or place of business of the parties
• The place where the relationship is centered

Question 3

Which choice-of-law approaches have different rules based on the substantive area?

Answer 3

• Vested rights (First Restatement)
• Most significant relationship (Second Restatement)

NOT governmental interest analysis

Question 4

When is a forum selection clause in a contract NOT followed?

Answer 4

• Contrary to public policy;
• No reasonable basis for the parties’ choice; or
• Fraud or mistake, and no true consent

Question 5

What law governs in contract cases under the First Restatement?

Answer 5

Depends on the contractual issue

• Law of the location where the contract was executed
  
  • Validity of the contract
  • Defenses to formation
  • Interpretation
• Law of the location where the contract was to be performed
  
  • Details of performance

Question 6

What law governs in contract cases under the Second Restatement?

Answer 6

Important contacts:

• Location of contracting, negotiation and performance
• Place where the contract’s subject matter is located
• Location of the parties’ domiciles, residences, nationalities, places of incorporation, and places of business

Default rules:

• Land: law of the situs
• Personalty (personal property): law of the place of delivery
• Life insurance: law where the insured is domiciled
• Casualty insurance: law of the insurance risk
• Loans: law where repayment is required
• Suretyship: law of the state governing the principal obligation
• Transportation (persons or goods): law of the place of departure

Note: The most significant relationship prevails over the default rules

Question 7

What law governs tangible personal property under the UCC?

Answer 7

The parties’ choice

Question 8

What law governs tangible personal property under the First Restatement?

Answer 8

The law of the state where the property was located at the time of the transaction

Question 9

What law governs tangible personal property under the Second Restatement?

Answer 9

The law of the situs of the property at the time of the transaction

Note: Unless another state has the most significant relationship

Question 10

What law governs intangible personal property under the UCC?

Answer 10

For security interests, the law of the state in which the debtor is located

For corporate securities, the law of the issuer’s state of incorporation

Question 11

What law governs intangible personal property under the First Restatement?

Answer 11

The law of the state where the intangible was created

Question 12

What law governs intangible personal property under the Second Restatement?

Answer 12

The law of the state with the most significant relationship to the transaction

Question 13

What law governs real property under the First Restatement?

Answer 13

The law of the situs of the property

Note: This also applies for which choice-of-law rules to use

Question 14

What law governs real property under the Second Restatement?

Answer 14

The law of the situs of the property

Note: Unless another state has the most significant relationship

Question 15

What determines whether equitable conversion will apply in a transaction of real property?

Answer 15

The law where the land at issue is located

Question 16

What law governs the administration of a trust?

Answer 16

The law of the place where the trust is administered

Question 17

What law governs a will or instrument that governs the disposition of property at death under the UPC?

Answer 17

The law selected in the instrument, unless it contradicts the public policy of the state enforcing the instrument

Question 18

What law governs the validity of a will under common law?

Answer 18

The law where the testator was domiciled at the time of death

Question 19

What law governs the validity of a will under the UPC?

Answer 19

The law where:

• The will was executed; or
• The testator was domiciled, had a place of abode, or was a national at the time of death

Question 20

What law governs the transfer of personal property from someone who dies intestate?

Answer 20

The law of the deceased’s domicile at the time of death

Question 21

What law governs the transfer of real property from someone who dies?

Answer 21

The law of the situs

Note: This applies whether the person died intestate or testate

Question 22

What law governs issues of corporate law (e.g. existence, structure, shareholder rights, internal corporate affairs) under the First Restatement?

Answer 22

The law of the state of incorporation

Question 23

What law governs issues of corporate law (e.g. existence, structure, shareholder rights, internal corporate affairs) under the Second Restatement?

Answer 23

The law of the state of incorporation

Question 24

When might a marriage be invalid?

Answer 24

If it violates a particularly strong public policy of the domicile of either party (e.g. bigamy, incest)

Question 25

What happens if a marriage is valid in the state where it took place but violates a prohibitory rule of the domicile of one of the parties?

Answer 25

It will be void in that other state

Question 26

What law governs whether an annulment is permitted?

Answer 26

The law of where the ceremony took place

Question 27

What law governs questions relating to the grounds of divorce?

Answer 27

The plaintiff’s domicile

Question 28

What law governs issues regarding marital property acquired before marriage?

Answer 28

• Real property: law of the situs
• Personal property: law of the domicile

Question 29

What law governs issues regarding personal property acquired during marriage?

Answer 29

Law of the domicile at the time of acquisition

Question 30

What law governs issues regarding real property acquired during the marriage?

Answer 30

Law of the situs

Question 31

What law governs in determining the enforceability of a premarital agreement?

Answer 31

The law of the state with the most significant relationship (majority approach)

Question 32

What law governs a child’s legitimacy?

Answer 32

The law of the domicile of the parent whose relationship to the child is in question

Question 33

What law governs legitimation of an illegitimate child?

Answer 33

• The parent’s domicile when the child’s status of legitimacy is claimed to have been created; or
• The child’s domicile when the parent acknowledged the child as their own

Question 34

What law governs adoption?

Answer 34

Forum law

Question 35

When does a state have a legitimate interest in a workers’ compensation case?

Answer 35

If it is the state where

• The employment relationship was entered into by the worker and the employer;
• The injury to the employee occurred;
• The employment relationship principally occurred; or
• The employee or the Employee’s dependents reside

Question 36

When does the forum court choose to apply another state’s workers’ compensation act?

Answer 36

Never

Instead, if the forum state does not have a legitimate interest, the court with likely dismiss the case without prejudice

Question 37

Will a court uphold a forum selection clause for workers’ compensation laws in an employment contract?

Answer 37

Generally yes, as long as it’s reasonable and doesn’t violate the public policy of another state that has a legitimate interest

Question 38

If more than one state is involved and has a legitimate interest in a workers’ compensation case, what should you do before determining which law governs?

Answer 38

Compare each state’s workers’ compensation statute