Conflict Of Laws

Front 1

Spotting a Conflicts Question - 2 tricks:

Back 1

(1) 2 or more states and

(2) uses the alphabet for "state names"

Front 2

Two Exam Testing Areas

Back 2

(1) Recognition of Judgments
(2) Choice of Law

(Domicile at issue in both)

Front 3

Spotting Recognition of Judgments Questions (2 steps)

Back 3

(1) In the fact pattern, bar examiners will tell you that a JUDGMENT has RENDERED in one jurisdiction, and

(2) In the call of the question line, they will tell you that one of the parties is seeking to have it RECOGNIZED in a second jurisdiction.

State handing down judgment = RENDERING STATE

State called upon to recognize and enforce judgment = RECOGNIZING STATE.

Front 4

Threshold Recognition of Judgments Inquiry:

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Is it a SISTER STATE or a FOREIGN COUNTRY judgment that requires recognition?

If Sister State, then Full Faith & Credit.

If Foreign Country, then Comity.

Front 5

Sister State Judgments (Full Faith & Credit) Inquiry

Back 5

Is the judgment entitled to Full Faith & Credit? (2 step analysis)

(1) Are the three FF&C requirements met?

(2)Are there any good defenses to FF&C?

Requirements
Defenses

Front 6

First - Determining if the three FF&C requirements have been met.

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(1) Jurisdiction must have been proper in the rendering state.
(2) Judgment must be on the merits (includes default judgments).
(3) Judgment must be final (can't be modifiable and future).
-- However, based on general comity principles or by statute, most states will still recognize the judgment, particularly in family law area.

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Second - Determining if there are any good defenses to FF&C.

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Good Defenses Checklist (they work):
(1) Judgment is Penal ("an offense against the public"; plaintiff is the state, NOT private).

(2) The judgment was procured by EXTRINSIC fraud (the fraud could not have been dealt with during the earlier trial within the regular workings of the judicial system [intrinsic fraud]).

Bad Defenses (the do not work):
(1) Tax Judgment
(2) Judgment is contrary to recognizing state's public policy.
(3) Mistakes of law/fact (should have been brought on appeal).
(4) Intrinsic Fraud (see above).

Front 8

Foreign Country Judgments (Comity) Inquiry

Back 8

Basically recognized (COMITY given) on the same basis as sister state judgments. However, the recognizing court will specifically look to see if our DUE PROCESS standards (fairness) are satisfied both in terms of:

(1) Proper jurisdiction (Shoe analysis) and
(2) Whether "sham" procedures were used during the earlier litigation (e.g., not allowed to question witnesses).

Front 9

Family Law Judgments

Back 9

Two Types:
(1) Divorce Decrees
(2) Ancillary Matters: Property and Custody Awards.

Focus in these matters (judgment wise) will be whether jurisdiction is proper. Differs depending on type.

Front 10

Divorce Decree Judgments (attacking)

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(1) Determine if jurisdiction was proper:
Rule - at least ONE spouse must be DOMICILED in the rendering state

and

(2) Determine if the person attacking jurisdiction is ESTOPPED from doing so.

Front 11

The Estoppel Checklist
(persons estopped from attacking earlier judgment)

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(1) Persons subject to personal jurisdiction in the earlier proceeding.

(2) Persons who played a "meaningful role" in the earlier proceeding (e.g., paid its expenses).

(3) Persons who are in privity with parties to the earlier proceeding, e.g. children.

(4) Persons who marry or remarry in reliance on an earlier proceeding.

Front 12

Ancillary Matters: Property and Custody Awards

Back 12

Determine if jurisdiction is proper:

(1) Property awards = jurisdiction war proper is there was personal jurisdiction over the spouse whose property rights were at issue.

(2) Custody Awards = jurisdiction is proper if the rendering court is that of the child's home state.

KEY - "Divisible Divorce Doctrine": If the divorce decree jurisdictional requirement is satisfied and the ancillary award jurisdictional requirements are NOT, the law regards the judgment as SEVERABLE, i.e., the divorce is valid, the other parts are not.

Front 13

The Domicile Issue

Back 13

(1) Domicile of Choice - domicile acquired by one who has "domicile capacity," i.e., the ability to fend for oneself.

(2) Domicile by Operation of Law - domicile assigned to one who lacks "domicile capacity" (person can't choose).

Front 14

Domicile of Choice

Back 14

Two part test:
(1) Physical presence in a place (even for short period of time) and
(2) Intent to be domiciled in that place (indefinitely).

May have more than one residence, but can only have ONE domicile. If multiple residences, then the principal one is domicile.

Front 15

Domicile by Operation of Law

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Infants - assigned the domicile of their parents. In case of a divorce or separation, it will be the domicile of the one with custody.

Mental Incompetents - One is assigned domicile of his/her parents. If one becomes incompetent after having acquired a domicile of choice, he/she retains the domicile of choice.

Front 16

Choice of Law

Back 16

Will involve litigation having factual contacts with more than one state.

Question - Which state law governs?

Answer - It will be the law selected by the FORUM court using its choice of law approach (subject to constitutional and statutory limitations.

Front 17

Choice of Law Limitations

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Constitutional - the ONLY time there's a constitutional limitation under either due process or full faith and credit is where the law applied is that of a state NOT having ANY SIGNIFICANT CONTACTS with and/or LEGITIMATE INTEREST in the litigation.

(2) Statutory Limitations - These are either state or federal statutes directing the court as to what it must or cannot apply, e.g. borrowing statute of limitations, federal patent law (can only be in federal courts).

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Three Choice of Law Approaches

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(1) "Vested Rights" Aproach (First Restatement)

(2) "Most Significant Relationship" Approach (Second Restatement)

(3) Governmental Interest Approach (or Interest Analysis Approach)

Front 19

"Vested Rights" Approach (First Restatement)

Back 19

For Bar Exam Answer:
(1) Opening Paragraph - characterize the SUBSTANTIVE area of law involved. ("This is a torts case.")

(2) Second sentence - State the appropriate VESTING RULE. ("The vesting rule for torts cases applies the law of the place of the injury.")

(3) Third Sentence - State what state "wins," i.e. the place where the rights vest. ("The injury occurred in Nebraska. Therefore, Nebraska law applies.")

Important:
(4) State the result. ("Under Nebraska law, there is intrafamily tort immunity and thus, Husband cannot recover against Wife.")

Front 20

"Most Significant Relationship" Approach (Second Restatement Approach

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Bar Exam Answer:

(1) Opening Paragraph:

"Under this approach the court will apply the law of that state which is MOST SIGNIFICANTLY RELATED to the outcome of the litigation. To determine this, they will look at (1) the 'connecting facts,' and (2) certain policy principles."

(2) Second Paragraph - Discuss the "Connecting Facts" (where did they occur and what are they? - Hints to facts that should usually be given greatest weight are determined by the substantive area of law involved).

(3) Discuss the Policy Principles (interest of the forum state and all other factually connected jurisdictions)

(4) State which state "wins" and Result

Tip - substantive area of the law important for first two approaches. Be careful - any one fact pattern may be subject to more than one interpretation.

Front 21

Governmental Interest Approach

Back 21

Bar Exam Answer

(1) Opening Paragraph -

"Under this approach, teh court will apply its OWN law as long as it has a LEGITIMATE INTEREST in the outcome of the litigation. If it has no legitimate interest, this is a "false conflict" case and the court will apply the law of another state."

(2) Second paragraph - Discuss whether the forum has a legitimate interest int eh outcome of the litigation. (If not, disuss the interests of the other states.)

(3) State what state wins and the result.

NOTE - "legitimate" is NOT "greatest".

Forum court will almost always apply its own law.

Substantive law not important for this approach.

Front 22

Tip - Create a Fact Ledger

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(1) Put in the FORUM

(2) Put in the differing LAWS and the differing RESULTS, and

(3) Put in the FACTS.

Front 23

Rule for Federal Courts - Diversity Cases

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Rule (open up answer with) -

"If the forum is a federal district court sitting in diversity jurisdiction, the court will apply the conflicts rules of the state in which it is SITTING.

EXCEPTION - "If the case has been transferred from another district, the court will apply the conflicts rules of the transferor state."

Front 24

Choice of Law - Substantive Law Areas

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Torts
Workers' Compensation
Contracts
Property
Family Law

Front 25

Choice of Law - Torts Rules

Back 25

Vested Rights - Place of Injury

Most Significant Facts -
(1) Place of Injury (most important)

(2) Place of Conduct causing injury

(3) Place of the "home state" (domicile/incorporation/place of business)

(4) Place where the relationship, if any, is centered.

Note - Under the Second Restatement Approach, THE most significant fact in an intrafamily tort immunity case is the "place of domicile."

Multiple State Torts (defamation - magazine readership in every state) - Since injury was probably greatest in Plaintiff's Domicile, most states will apply that law.

Front 26

Choice of Law - Workers' Comp

Back 26

Not really choice of law problem b/c this involves an administrative tribunal case and it will ALWAYS apply its own workers' compensation statute.

Fave Testable Items - Two "Double Recovery" Questions:

(1) Can worker recover under more than one worker's compensation act? Yes, but any prior recoveries will be credited against subsequent ones.

(2) Can the worker recover under the workers' compensation act AND in a common law tort proceeding? Yes, IF the defendant has NOT been given IMMUNITY under the act. EMPLOYER has the immunity, so employer cannot be the defendant.

Front 27

Choice of Law - Contracts

Back 27

Threshold Inquiry - Determine if there is a VALID express choice of law provision in the contract. If so, it governs (and court NEVER gets to its choice of law approach).

So, make sure its valid!!!

If invalid, then the basic choice of law rules will govern answer.

Front 28

Reasons to Invalidate Contracts Choice of Law Clause

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(10 Law selected is that of a state having NO "reasonable relationship" with the contract. (like contract b/t Kansas and Missouri citizens with K to be entirely performed in those states but Choice of Law Clause in Alaska - clause will be invalidated).

(2) No true "mutual assent." (for instance, due to one party misrepresenting some aspect of the state's law of the state for choice of law clause - will be invalidated).

Front 29

Basic Choice of Law Contracts Rules

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Vested approach (2)
(1) K Formation - Place of Execution

(2) K Performance - Place of Performance (or primary performance if in more than one state)

Most Significant Relationship - Most Significant Facts

(1) Place of Negotiation
(2) Place of Execution
(3) Performance
(4) Place of "home state" (Domicile/Incorporation/Place of Business)
(5) Place where the subject matter, if any, is located.

Note - If the place of negotiation and performance is the same, that state is probably most significantly related.

Note - For certain TYPES of contracts other facts may be regarded as more "significant" (e.g., land sale contracts).

Make sure OPENING PARAGRAPH.

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Miscellaneous Contract Items

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(1) Capacity - Under the First Restatement "capacity" is a formation problem governed by the law of the place of execution. Under the Second Restatement it is governed by the law of the domicile of the party involved.

(2) Assignment of Contract Rights, Delegation of Duties - 2 contracts to possible discuss: the MAIN one AND the one seeking to assign rights/delegate duties in it. (Be sure to discuss the ones they ask you to!)

Front 31

Choice of Law - Property

Back 31

Both restatements have the same rules, i.e., the vesting rules and the most significant facts are the same rules for exam purposes.

Real Property Rule - Situs (where the land is located) - same for both inter vivos and inheritance matters)

Personal Property

(1) Inter vivos transactions: Situs at the TIME of the TRANSACTION

(2) Inheritance Matters - Domicile of Decedent at Date of Death

Intangible Property - incorporated in a document - the situs is where the document is.

Front 32

Choice of Law - Family Law

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Marriage
Divorce
Legitimacy

Front 33

COL - Marriage

Back 33

Rule - If a marriage is valid where it is performed it will be recognized as valid everywhere.

Exception - Where domiciliaries of one state TEMPORARILY leave that state and elsewhere to get married in order to avoid a PROHIBITORY rule of their state of domicile, their state of domicile will not recognize the marriage.

NOTE - a prohibitory rule is one that expresses a strong public policy.

Premarital Contracts - The choice of law rules are basically the same as for other contracts (e.g., the law of the state with the most significant relationship to the parties and the transaction or the law of the state where the agreement was executed will be applied).

Front 34

COL - Divorce

Back 34

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.

Front 35

COL - Legitimacy

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(1) Children born out of wedlock are illegitimate. If the mother is married, the child is presumed legitimate.

(2) The validity of subsequent acts of legitimation are governed by the law of father's domicile. The modern trend holds it is valid if sufficient under the law of either the father's or child's domicile.

Front 36

COL Defenses

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Bad - Forum law is against forum's public policy. Modern trend - part of basic analysis, not defense.

Good - Substance/Procedure Dichotomy
- Concept: forum will use its choice of law approaches to determine which substantive law to apply. However, if matter is procedural, it will apply its own law.

Substantive = COL determination

Procedural = own law

Front 37

Statute of Limitations

Back 37

General Rule - Statutes of limitations are treated as procedural. Thus, the forum will apply its own statute.

Two Exceptions:

(1) Borrowing Statutes (Statutory Direction): Under these, the forum is directed to apply the "shorter" time limit (the forum's OR that of the state where the cause of action arose).

(2) Statute Conditions Substantive Right
- General Rule: If you apply another state's statute which creates substantive right, you should apply the ENTIRE statute, including its otherwise procedural type provisions.

Modern Trend: STatutes of limitation are treated as "substantive" matters subject to a basic choice of law analysis. (Apply the statute of limitations of the most significantly related state.)

Tip - If confronted with a statute of limitations issue on the exam, unless the call of the question line specifically directs you to do otherwise, you should always discuss:

BOTH the PROCEDURAL and the SUBSTANTIVE positions.

Always always (no matter what) put general rule first, THEN exception (even if exception controls).

Front 38

Vested Rights MEMORIZE

Back 38

PISSED

The Place of:
Peformance (KP)
Injury(T)
Situs(RP)
Situs at the time of relevant transaction (PP -IV)
Execution (KF)
Domicile of Decedent's Death (PP - Inh)