Conflict Of Laws

Front 1

Full faith and credit elements

Back 1

Proper jurisdiction, judgment on the merits, final judgment

Front 2

When a judgment is not on the merits

Back 2

Based on lack of jx,

lack of capacity to sue,

misjoinder or causes of action,

improper venue,

time bars such as SOL

Front 3

Finality refers to

Back 3

whether any further judicial action is necessary.

Front 4

Modifiable judgments are usually not

Back 4

final.

Front 5

Defenses to FFC:

Back 5

1) judgment is a penal judgment

2) judgment is subject to equitable defense in rendering state (extrinsic fraud)

Front 6

Res judicata effects

Back 6

1) merger of π's COA into judgment

2) bar against π suing in same COA

3) CE as to an issue resolved (actually litigated, essential)

Front 7

If a judgment is entitled to FFC, it must

Back 7

be enforced, even if granted erroneously.

Front 8

Comity is

Back 8

discretionary

Front 9

Comity elements:

Back 9

1) foreign court had jx, 2) fair procedures used

Front 10

Divorce decrees of sister states are entitled to FFC if

Back 10

jx requirement is met, e.g. one party domiciled in that state

Front 11

In divorce decrees, there is a rebuttable presumption

Back 11

as to domicile

Front 12

Re: divorce, the mere fact that a court has personal jx will not...

Back 12

by itself, be enough to satisfy FFC. One party must be domiciled.

Front 13

Any interested person may collaterally attack

Back 13

the validity of another state's divorce decree.

Front 14

A person will be estopped from attacking another jx's divorce decree if he is

Back 14

1) parties to prior proceedings,

2) privies of parties,

3) persons who accept a foreign divorce and remarry in reliance thereon

Front 15

Ex parte divorce grants only...

Back 15

divorce, unless there is property located in that state + minimum contacts

Front 16

An individual may have only one

Back 16

domicile.

Front 17

Domicile by choice elements:

Back 17

1) physical presence and 2) intention to remain

Front 18

A person retains her original domicile until

Back 18

she meets the two part domicile test.

Front 19

Domicile by operation of law is for

Back 19

children and incompetents

Front 20

A child is domiciled with

Back 20

her custodial parents

Front 21

An incompetent is domiciled with

Back 21

his parents

Front 22

A corp is domiciled in

Back 22

its state of incorporation

Front 23

Constitutional: if a state has sufficient contacts and interest in obtaining judgment, it can

Back 23

apply its own law.

Front 24

Three main analytical approaches to choice of law:

Back 24

1) vested rights approach (1st Restatement)

2) significant relationship approach (2nd Restatement)

3) interest analysis approach

Front 25

Three steps of the vested rights approach:

Back 25

1) characterize the area of substantive law

2) determine the particular choice of law rule

3) localize the rule to be applied

Front 26

In the most significant relationship approach, consider:

Back 26

1) the needs of the interstate/int'l system,

2) relevant policies and interests of the forum,

3) policies and interests of other jx,

4) should justified expectations be protected?

5) basic policies underlying substantive law,

6) will application of a certain law aid certainty, predictability and uniformity?

7) may determination and application of a specific law be made with ease?

Front 27

For the interest analysis approach, assume

Then, consider whether

If not, it is a

Back 27

that the forum will apply its own law,

the state has any interest in the litigation.

"false conflict" and the forum will apply the law of the second state.

Front 28

Torts First Restatement approach

Back 28

place of the wrong

Front 29

Torts Second Restatement approach

Back 29

place of the injury,

place of conduct causing the injury,

domicile, residency, nationality,

place where the relationship b/w the parties centers

Place of the injury is most important

Front 30

For the interest analysis test in torts,

Back 30

same analysis as general.

Front 31

Re: torts, the courts of states without guest statutes

Back 31

are reluctant to apply another state's statute if it would deprive their residents of remedy.

Front 32

Generally states seek to apply their own...

(compensation)

Back 32

worker's comp statutes

Front 33

A π may recover in more

Back 33

than one state, but recovery in one state is credited against recovery in another.

Front 34

Grant of immunity in wrongful death case following worker's comp case

Back 34

is discretionary

Front 35

In a contracts case, first determine

It will govern if

Back 35

if there is an express choice of law provision

it is not contrary to public policy, there is a reasonable basis for the parties' choice, or true consent was given (no fraud, duress, adhesion)

Front 36

First restatement approach to contracts

Back 36

place where K was made for formation,

place where K to be performed for issues of performance

Front 37

Second restatement approach to contracts:

Back 37

in addition to 7 policies, look at

place of contracting/negotiation/performance

location of subject matter

domiciles, residency etc of parties.

Front 38

For the second restatement approach to contracts, if place of formation and performance are the same,

Back 38

that place will be deemed most significantly related.

Front 39

Under the first restatement, capacity to contract is gov'd by

Back 39

law of place of contracting

Front 40

under the second restatement, for capacity issues,

Back 40

law of the place where the person at issue is domiciled

Front 41

For real property issues, under the first and second restatement, look

Back 41

to the law of the situs.

Front 42

Under the first and second restatement, for personal property issues

Back 42

look to the law of the situs at the time of the relevant transaction

Front 43

Inheritance issues are governed by the

Back 43

lex situs.

Front 44

If the marriage, valid in the state of consummation, is PROHIBITED in the state to which the parties are to return,

Back 44

it is not valid in that state.

It could be valid in a third state.

Front 45

Annulment is governed by the law of the place

Back 45

where the marriage was celebrated

Front 46

Divorce choice of law is governed

Back 46

by the place of the plaintiff's domicile

Front 47

For adoptions, a state applies

Back 47

its own local laws.

Front 48

Under the first and second restatements, questions regarding internal corporate matters

Back 48

place of incorporation

Front 49

No matter the substantive law, the interests analysis

Back 49

is ALWAYS THE SAME.

Front 50

Three arguments to be considered in the application of a foreign law:

Back 50

1) is it procedural,

2) is it against the forum's policies,

3) is it penal or tax law

Front 51

A forum will always apply its own

Back 51

procedural laws.

Front 52

Use the public policy defense

Back 52

sparingly.

Front 53

Under the first restatement, it could be a valid defense that a foreign state's law was

Back 53

a tax or procedural law

Front 54

wrt the tax/procedure defense, the second restatement

Back 54

prohibits only penal laws.

Front 55

Depeçage, under the first restatement, requires

Back 55

application of laws of a single state to all issues.

Front 56

The modern approach to depeçage

Back 56

directs the state to examine each issue individually

Front 57

Most states reject

Back 57

renvoi

Front 58

Renvoi is available today in

Back 58

marriage, parenthood, interests in land

Front 59

In some areas only federal courts have jx

Back 59

federal antitrust, BK, patent.

Front 60

There is no federal common law. Under Erie, the fed courts

Back 60

must apply the substantive law of the state in which the court sits. This includes conflict of laws rules.

Front 61

Most states take judicial notice of

Foreign country law

Back 61

sister state and federal law.

Must be proven as fact.