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76 Cards in this Set
- Front
- Back
Spotting a conflicts question
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Three will always be two or more states
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Four exam testing areas
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1. Jurisidiction
2. Recognition of Judgments 3. Domicile 4. Choice of Law |
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1. Jurisidction
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Look for this in a recognition of judgments questions as this is a full faith + credit requirement
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Spotting a recognition of judgments question
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1. Judgment rendered in one jurisidiction.
2. The call of the question has a party seeking to recognize it in another jurisidiction |
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Rendering State
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State that handed the judgment down
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Recognizing State
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State called upon to recognize and enforce the judgment
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Threshold judgment recognition questions
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Is it a sister state or foreign country judgment requiring recognition?
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Recognition of Sister State Judgments
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Is it entitled to full faith + credit? Two requirements:
1. Determine if the three full faith + credit requirements have been satisfied 2. Determine if there any good defenses to full faith + credit |
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Three full faith + credit requirements
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0. The three full faith + credit requirements are evaluated according to rendering state law
1. Jurisidiction must have been proper in the rendering court 2. Judgment must be on the merits (i.e., SOL had run. Note a default judgment is on the merits) 3. Judgment must be final (but note that most states will still recognize the judgment based on general COMITY principles) |
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What are good and bad defenses to full faith + credit
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GOOD DEFENSES
1. The judgment is penal 2. The judgment was procured by extrinsic fraud BAD DEFENSES (they don't work) 1. It is a tax judgment 2. The judgment is contrary to the recognizing state's public policy 3. Mistakes of law and/or fact were made |
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1. The judgment is penal
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GOOD DEFENSE
A penal judgment is one which punishes an offense against the public. The plaintiff must be the state in a penal judgment (heavy punitive damages are not enough if it is a private plaintiff--the plaintiff has to be the state) |
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2. The judgment was procured by extrinsic fraud
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GOOD DEFENSE
Intrinsic fraud is not a good defense. If the fraud could have been dealt with during the earlier trial within the regular workings of the judicial system, its intrinsic fraud (i.e., perjury). If not it's extrinsic (i.e., bribing a judge) |
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1. It is a tax judgment
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BAD DEFENSE (doesn't work)
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2. The judgment is contrary to the recognizing state's public policy
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BAD DEFENSE (doesn't work)
NV gambling debts in Kansas are still enforceable |
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3. Mistakes of law and/or fact were made
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BAD DEFENSE (doesn't work)
The wrong procedural route has been selected. If such mistakes were made, they should have been appealed in the rendering state's court system |
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Foreign Country Judgments
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Foreign country judgments are 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 are satisfied both in terms of:
(i) whether jurisdiction was proper (min. contacts jurisdictional analysis) (ii) whether fair procedures were used during the earlier litigation (wasn't a "sham" litigation) |
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Family Law Judgement Types
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1. Divorce Decrees
2. Ancillary Matters: Property & Custody Awards |
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Divorce Decree Analysis
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1. Determine if the Jurisdiction was proper (at least one spouse must be domiciled in the rendering state)
2. Determine if the person attacking jurisdiction is estopped from doing so |
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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 proceedings (i.e., paid its expenses) 3. Persons who are in privity with parties to the earlier proceedings (i.e., children) 4. Persons who marry or remarry in reliance on earlier proceeding |
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Property and Custody Awards Analysis
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Determine if the jurisdiction was proper:
1. For property awards, jurisdiction was proper if there was personal jurisdiction over the spouse whose property rights were at issue (i.e., husband for husband's money to wife in alimony) 2. For custody awards, jurisdiction is proper if the rendering court is that of the child's home state |
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Divisible Divorce Doctrine
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If the divorce decree jurisdictional requirement is satisfied and the ancillary award jurisdiction amounts are not, the law regards the judgement as severable; i.e., the divorce is valid, the other parts are not
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3. Domicile
Two types: |
1. Domicile of Choice
2. Domicile by Operation of Law |
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Opening sentence in domicile answer
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Set out why you are discussing domicile
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Domicile of Choice is ...
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domicile acquired by one who has "domicile capacity" (i.e., the ability to fend for oneself)
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Domicile of Choice two-part fact test:
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1. Physical presence in a place
2. An intent to be domiciled in that place |
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Domicile of Choice
Favorite Bar Exam Fact Issues |
1. Physical presence can be for a very short period for time as long as intent is clearly manifested
2. Do not confuse intent with motive 3. If one has multiple residences, the primary one is his domicile 4. One can only acquire a new domicile by perfecting the two-part test in that place |
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Domicile by Operation of Law
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domicile assigned to one who lacks domicile capacity
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Domicile by Operation of Law
Infants |
Infants are assigned the domicile of their parents. In the case of divorce or separation, it will be the domicile of the one with custody
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Domicile by Operation of Law
Mental Incompetents |
One is assigned the domicile of his parents. If one became incompetent after having acquired a domicile of choice, he retains the domicile of choice
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3. Choice of Law
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This will involve litigation having factual contacts with more than one state
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The choice of law question and answer?
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Which state law governs?
The law selected by the forum court using its choice of law approach (subject to constitutional and statutory limitations) |
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Constitutional Limitions to Choice of Law
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The only time there's a constitutional limitation under either due process or fill faith + credit is where the law applied is that of a state not having any significant contacts and/or legitimate interest in the litigation. As a practical matter. this almost never happens.
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Statutory Limitations to Choice of Law
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These are either state or federal statutes directing the court as to what it must or cannot apply (e.g., borrowing statues of limitations, federal patent law--which can only be in federal courts)
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Choice of Law Approaches
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1. Vested Rights Approach
2. Most Significant Relationship Approach 3. Governmental Interest Approach |
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Vested Rights Approach
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1. Characterize the substantive area of law involved (e.g., this is a torts case; may involve tow areas--i.e., torts and contract law)
2. State the appropriate vesting rule (e.g., the place of injury) 3. State what state "wins" (i.e., where the rights vest; e.g., ("The injury occurred in Nebraska. Therefore Nebraska law applies") 4. State the result (Under Nebraska's law, there is intrafamily tort immunity and, thus, Husband cannot recover against Wife) |
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Most Significant Relationship Approach
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1. "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:
(i) the CONNECTING FACTS (ii) certain POLICY PRINCIPLES 2. Discuss the connecting facts (where did they occur and what are they; most important facts vary according to the substantive area of law involved [may be more than 1]) 3. Discuss the policy principles (interests of the forum and all other factually connected jurisdiction) 4. State what state "wins" and the result |
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Governmental Interest Approach
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1. "Under this approach, the court will apply its own law as long as it has LEGITIMATE interest in the outcome of the litigation. If it has no legitimate interest, this is a FALSE CONFLICT case and it will apply the law of another state
2. Discuss where the Forum has a LEGITIMATE interest in the outcome of the litigation (if not discuss the interests of other states) [legitimate interest, not greatest interest] 3. State what state "wins" and the result (almost always apply forum law) |
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Create a Facts Ledger
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1. Put in the Forum
2. Put in the differing law and the differing results 3. Put in the facts |
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Federal Courts/Diversity Cases
RULE |
If the forum is a federal district court sitting in diversity jurisdiction, the court will apply the conflict rules of the state in which it is sitting
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Federal Courts/Diversity Cases
EXCEPTION |
If the case has been transferred from another district, the court will apply the conflicts rules of the transferor state
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Choice of Law: Specific Substantive Law Areas
Vested Rights Memorizer |
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Law of the Place of _____ applies: 1. Performance - Contract Performance 2. Injury - Tort 3. Situs - Real Property 4. Situs (at the time of the relevant transaction) - Inter Vivos Personal Property 5. Execution - Contract Formation 6. Domicile of Decedent at Date of Death - Inheritance of Personal Property |
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Choice of Law: Specific Substantive Law Areas
TORTS Vested Rights Approach |
Place of Injury
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Choice of Law: Specific Substantive Law Areas
TORTS Most Significant Relationship Approach |
1. Place of Injury (most significant)
2. Place of conduct causing injury 3. Place of the "home" state (domicile, incorporation, ppb) 4. Place where the relationship, if any, between the parties is centered |
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Choice of Law: Specific Substantive Law Areas
TORTS Most Significant Relationship Approach (NOTES) |
1. The most significant fact in an intrafamily tort immunity case is the PLACE OF COMMON DOMICILE
2. In multiple state torts (defamation, printed in every state), injury probably greatest in the plaintiff's domicile, so that law applies |
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Choice of Law: Specific Substantive Law Areas
WORKERS' COMPENSATION Preliminary Note |
There are no choice of law problems since this is an administrative tribunal case and it will always apply its own workers' compensation statute
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Choice of Law: Specific Substantive Law Areas
WORKERS' COMPENSATION Bar Exam Test Items |
Two "Double Recovery" Questions
1. Can the worker recover under more than one workers' compensation suit? 2. Can the worker recover under the workers' compensation act and in a common law tort proceeding? |
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1. Can the worker recover under more than one workers' compensation suit?
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Yes, but any prior recoveries will be credited against subsequent ones.
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2. Can the worker recover under the workers' compensation act and in a common law tort proceeding?
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Yes, if the defendant has not been given immunity under the act (employers have immunity)
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Choice of Law: Specific Substantive Law Areas
CONTRACTS Threshold inquiry |
Determine if there is a valid express choice of law provision. If so, the provision governs
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Choice of Law: Specific Substantive Law Areas
CONTRACTS Reasons to invalidate a Choice of Law Provision |
1. Law selected is that have a state having no reasonable relationship with the contract
2. No true mutual assent (one party misrepresents the law of the selected forum) WHEN IN DOUBT, FIND THE PROVISION INVALID |
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Choice of Law: Specific Substantive Law Areas
CONTRACTS If there is no valid express choice of law provision... |
the basic choice of law rules will govern your answer
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Choice of Law: Specific Substantive Law Areas
CONTRACTS Vested Rights Approach |
1. Contract Formation Problems: Place of EXECUTION
2. Contract Performance Problems: Place of PERFORMANCE (or primary performance if in more than one state) |
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Choice of Law: Specific Substantive Law Areas
CONTRACTS Most Significant Relationship Approach |
1. Place of negotiation
2. Place of execution 3. Place of performance 4. Place of "home" state 5. Place where subject matter, if any, is located NOTE: if 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) |
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Choice of Law: Specific Substantive Law Areas
CONTRACTS Capacity Issues |
Under Vesting Rights Approach, capacity is a formation problem governed by the law of the place of execution
Under the Most Significant Relationship Approach, it is governed by the law of the domicile of the party involved |
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Choice of Law: Specific Substantive Law Areas
CONTRACTS Assignment of Contract Rights, Delegation of Duties |
Note there are two contracts to possible discuss, the main one and the one seeking to assign rights/delegate duties (discuss the right contract)
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Choice of Law: Specific Substantive Law Areas
PROPERTY Preliminary Note |
Both the Vesting Approach and the Most Significant Facts Approach have the same rules
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Choice of Law: Specific Substantive Law Areas
PROPERTY Real Property |
Rule: Situs
This covers both inter vivos transactions and inheritance matters |
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Choice of Law: Specific Substantive Law Areas
PROPERTY Personal Property |
Two rules:
1. Inter Vivos Rule - Situs at the time of the relevant transaction 2. Inheritance Matters - Domicile of the decedent at date of death NOTE: if an intangible property interest is incorporated in a document (e.g., negotiable interest, stock certificate), the situs is where the document is |
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Choice of Law: Specific Substantive Law Areas
FAMILY LAW |
Marriage
Divorce Legitimacy |
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Choice of Law: Specific Substantive Law Areas
FAMILY LAW Marriage Rule |
If a marriage is valid where it is performed, it will be recognized as valid everywhere
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Choice of Law: Specific Substantive Law Areas
FAMILY LAW Marriage Exception |
Where domiciliaries of one state TEMPORARILY leave that state and go 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.
A prohibitory rule is one that expresses a strong public policy |
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Choice of Law: Specific Substantive Law Areas
DIVORCE |
There are no choices 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 won laws apply |
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Choice of Law: Specific Substantive Law Areas
LEGITIMACY |
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 the father's domicile. The modern trend holds valid if sufficient under the law of either the father's or child's domicile |
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Defenses to Choice of Law
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1. Foreign law is against forum's public policy (almost never accepted)
2. Substance/Procedure Dichotomy |
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Defenses to Choice of Law
Substance/Procedure Dichotomy |
In issue is whether the __________ (fill in the applicable type of law; e.g. statute of limitations) is substantive or procedural, for if it is procedural the forum will apply its own law
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Substance/Procedure Dichotomy
GENERAL RULE |
Statute of Limitations are treated as procedural. Thus, the forum will apply its own statute
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Substance/Procedure Dichotomy
EXCEPTIONS |
1. Time limit set by Contract (as a general rule, these will govern)
2. Borrowing Statutes 3. Statute Conditions Substantive Right |
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Substance/Procedure Dichotomy
EXCEPTIONS Borrowing Statutes |
Under these, a forum is directed to apply the shorter time limit (the forum's or that of the state where the cause of action arose)
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Substance/Procedure Dichotomy
EXCEPTIONS Statute Conditions Substantitive Right |
If you apply another state's statute which creates a substantitive right, you should apply the entire statute including its otherwise procedural type (i.e., wrongful death or survival actions)
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Substance/Procedure Dichotomy
Modern Trend |
Statutes of limitations are treated as "substantitve" matters subject to a basic choice of law analysis (e.g., apply the statute of limitations of the most significantly related state)
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Substance/Procedure Dichotomy
DISCUSS BOTH |
the general rule (procedural) and the modern trend (substantive) positions
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MINI-REVIEW
Federal Court/Diversity Jurisdictional Issue |
Opening sentence:
"Federal district courts sitting in diversity jurisdiction will apply the conflicts rules of the state in which they are sitting" (unless the case had been transferred from another district, then the rules of the transferor court will apply) |
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MINI-REVIEW
Substance/Procedure Dichotomy |
Opening Sentence:
"In issue is whether the [given law from the fact pattern] is substantive or procedural, for if it is procedural the forum will apply its own law" |
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MINI-REVIEW
Most Significant Relationship Approach |
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 (i) the CONNECTING FACTS and (ii) certain policy principles" [discuss facts generally] |
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MINI-REVIEW
Governmental Interest Approach |
Opening Paragraph:
"Under this approach the 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 it will apply the law of another state" [forum almost always has a legitimate interest and applies its own law" |
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Vested Rights Memorizer
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The law of the place of ________ applies 1. Performance - Contract Performance 2. Injury - Tort 3. Situs - Real Property 4. Situs at the time of the relevant transaction - Inter Vivos Personal Property 5. Execution - Contract Formation 6. Domicile of Decedent at Date of Death - Inheritance Matters of Personal Property |