Conflict Of Law Bar 2011

Front 1

what is domicile

Back 1

person's fixed or established legal residence (pre-eminent headquarters)

Front 2

How many domicile's can a person have?

Back 2

1 domicile at a time for a single purpose, only 1 domicile at a time for a purpose, and always 1 domicile
(never without or between)
can be different for different bodies of law

Front 3

domicile capacity

Back 3

legally choose his own domicile
exists
old enough
mature enough

Front 4

Test for domicile

Back 4

1. physically present
2. intent make domicile

need these two elements together

Front 5

how do you determine intent to be domiciled?

Back 5

all relevant circumstances
important factor - taken steps to abadon previous domicile
intend reside indefinetly or for the time being

Front 6

If can't tell which of multiple houses is the principal residence, what is teh default rule?

Back 6

The first acquired house

Front 7

Perfecting a new domicile

Back 7

people retain their old domicile until they perfect new one

Front 8

to whom does domicile by law apply?

Back 8

people who lack domicile capacity (infants)

Front 9

where is an infant domiciled?

Back 9

with parents or parent with custody.
-6th circuit - have two domiciles for the single purpose of auto insurance coverage

Front 10

where is mentally incapacitated person domiciled?

Back 10

-if incapacited since infancy - with parents - never had capacity to perfect a different domicile
-incapacity after choosing a domicile - retain domicile of choice - can't perfect a diff domicile

Front 11

rendering state

Back 11

state in which the litigation occured and the judgment entered

Front 12

recognizing state

Back 12

state called upon to recognize the judgment

Front 13

Full Faith and Credit Clause

Back 13

Constitutional mandate to recognize a sister state's judgement

Front 14

Three Full Faith & Credit requirements?

Back 14

1. Proper Jurisdiction
2. On the merits (substantive issue)
3. Final (all post-trial proceedings and appeals must have been exhausted)

Front 15

Which law governs the 3 Full Faith & Credit requirements?

Back 15

law of the rendering state

Front 16

What defenses are there to the Full Faith and Credit clause?

Back 16

1. Penal - judgment which punishes an offense against the public (state or people is P) exception - tax judgment
2. Extrinsic Fraud
-intrinsic fraud dealt within the ordinary and regular workings of the judicial system
-extrinsic - judge bribed

Front 17

What two kinds of judgments are involved in conflict of law divorce issues?

Back 17

1. divorce decree itself
2. ancillary awards (property/alimony and child custody)

Front 18

What gives a state jurisdiction to grant a divorce?

Back 18

jurisdiction over the marriage
-jurisdiction over the marriage is satisfied if at least one spouse is domiciled in the state

Front 19

When can a party be estopped from attacking the jurisdiction of the court that granted the divorce?

Back 19

1. Persons subject to personal jurisidiction in earlier proceeding
2. Persons who played meaningful role in earlier proceeding
3. Persons in privity with parties (children)
4. Person who marry or remarry in reliance

Front 20

When does state have jurisdiction to make an ancillary grant of property/alimony?

Back 20

need personal jurisdiction over the spouse whose property interests were in issue

Front 21

When does court have jurisdiction to make an ancillary award of child custody?

Back 21

state must be the home state of the child

Front 22

Comity

Back 22

discretionary doctrine which the court in the US employs to determine whether to recognize international judgment

Front 23

What is the Comity doctrine test?

Back 23

judged by RECOGNIZING forum (not rendering)
1. Jurisdiction proper (need minmum contacts)
2. Fair proceedings

Front 24

which civil procedure law does forum court use in conflict of law problem?

Back 24

civil procedure of the forum court

Front 25

What conflict of law approach is used in Kentucky?

Back 25

Most significant relationship test

Front 26

Most significant relationship approach

Back 26

1. approach to solving choice of law issues
2. which state has most significant relationship to the issues
Forum court considers
1. contacts with case
2. relevant policy principles (state most concerned with problem)

Front 27

What are some policy considerations under most significant relationship approach?

Back 27

1. providing comp to injured
2. providing remedy for wrong
3. harmony among states
4. furthering interstate commerce

Front 28

What conflict of law approach does a federal district court apply

Back 28

state where it sits
Exception: been transferred to a U.S. District Court in one state to another state - follow approach of Transferor court

Front 29

What are the most significant relationships for torts?

Back 29

1. place of injury
2. place of conduct
3. place of home state of parties
4. place where the relationship between the parties, if any, is centered

KY law - under KY law any significant contact with KY is sufficient to allow KY law to be applied

Front 30

What are preliminary conflict of law contracts issues?

Back 30

1. Parties' express contractual choice of law - almost always honored. if not court choose what law to follow
2. Rule of Validation

Front 31

Conflict of law
contracts
when are parties' express K choice of law invalid?

Back 31

1. place has no reasonable relationship with the K
2. there was no mutual assent to the choice of law

Front 32

What are the most significant contacts for conflict of law contracts cases?

Back 32

1. place of negoiation
2. place of execution (place of last signing)
3. place of performance
4. home states of the parties (domicile, business, incorporation)
5. place where the subject matter is located, if any (chattels)

Front 33

Rule of Validation

Back 33

CL rule - if law of one state would invalidate the contract, but the law of another state would uphold the contract, the forum court will prefer to select the law of the jurisdiction which will validate the contract
(just another thing to consider with most significant contracts)

Front 34

How do you apply the law of two states to a conflict of law contracts case?

Back 34

1. 3 significant contacts (negotiation, execution, and home state of parties) - K Formation
2. 2 significant contacts (performance and subject matter, if any) K performance/breach

In other words forum court can choose two different states laws to govern one contract case
one state contract validity and one state contract breach

Front 35

what standard do you apply in evidence conflict of law questions?

Back 35

most significant relationship test

Front 36

Conflict of law issue of privileged communications - which state law

Back 36

state with most significant relationship to the evidence (communication)
if not privileged in forum (Kentucky) but privileged in other state, will be admitted unless some special policy favoring admission should not be given effect

Front 37

Borrowing statute?

Back 37

is a provision which requires the forum court to apply the shorter period of limitations (either own or SOL where the cause of action arose)
exception to normal rule that forum state applies it's own civil procedural

Front 38

How does a statute of limitation within a substantive statute impact conflict of law analysis?

Back 38

Forum court apply the period of limitations in the other states statute (if apply substantive statutory law, it should apply the entire statue)