Conflict Of Laws

Front 1

When does one determine whether an issue has been settled by the full faith and credit of a sister state judgment? What must be considered in such an analysis?

Back 1

Before one conisders the choise of lw problems, it is necessary to determine that the cause of ction for any given issue has not been settled by the full faith and credit effect of a sister state judgment. The following should be considered: 1. Have the full faith and credit requirements been met? Are there defenses to full faith and credit available? What are the effects of recognizing a sister state judgment?

Front 2

What are the full faith and credit requirements?

Back 2

1. Jurisdiction must have been proper in the court rendering the judgment (jxd over parties and subject matter)
2. Judgment must be on the merits; 3. Judgment must be final.

Front 3

What is the "Bootstrap Doctrine"?

Back 3

If a question of jurisdiction was fully and fairly litigated in the original action, that determination is res judicata and entitled to full faith and credit, even if that determination was erroneous.

Front 4

When is a judgment "on the merits" for the purposes of a full faith and credit determination?

Back 4

For a judgment to be entitled to full faith and credit, it must be on the merits, meaning that it must involve the substance of a P's claim. Judgments decided on procedural grounds (lack of jxd/improper venu), time bars, or P's lack of capacity to bring the action are not "on the merits."

Front 5

When is a judgment "final" for the purpose of a full faith and credit determination?

Back 5

Finality means that means that there is no further judicial action necessary by the rendering court to resolve the litigation.

Front 6

What defenses are available to full faith and credit judgments?

Back 6

1. penal judgments- judgments imposed as punishment of an offense against the public."
2. Existence of equitable defenses against judgment in rendering state. (extrinsic fraud).
3. Inconsistent judgments-traditionally, courts recognize the last judgment
4. PUBLIC POLICY IS NOT A DEFENSE!!

Front 7

What questions need to be analyzed on the bar exam when analyzing the effect of recognizing a sister state judgment in a full faith and credit determination?

Back 7

1. What are the res judicata effects?
2. Who will be bound by the former judgment?

Front 8

What is the "same cause of action" determinative test for the purposes of merger an bar?

Back 8

Merger and Bar are two aspects of res judicata that prevent the plaintiff from maintaining another suit on the same cause of action (Merger) and prevent a plaintiff from suing the defendant again for the same cause of action,where the defendant has prevailed in the case (bar). The questions for analyzing whether a COA is the same COA are:
1. Is it claimed that the same right has been infringed by the same wrong in both proceedings?
2. Are the supporting facts in both cases the same?
3. Are the same legal principles applicable to both proceedings?

Front 9

What is "collateral estoppel?" When is it used?

Back 9

If the COA is different in a second proceeding, but an issue resolved in the first litigation is again raised in the 2nd suit, collateral estoppel will apply, and resolution of the issue of fact in the first suit will be binding on the parties in the 2nd suit.

Front 10

What is the general rule for recognition of divorce judgments?

Back 10

Courts will give full faith & credit to divorce decrees of the courts of sister states if: 1. the sister state had proper jxd over the parties and subject matter (SMJ in a divorce exists if one party is domiciled in the forum) 2. the decree is valid in the sister state

Front 11

Where is a person's domicile?


Where is a corporation's domicile?

Back 11

A person having legal capacity's domicile is the state that s/he has chose. A Court will look to whether the person is 1. phyically present and 2. intending to be domiciled in her/his chosen state.

A corporation's domicile is in its state of incorporation.

Front 12

What is the "same cause of action" determinative test for the purposes of merger an bar?

Back 12

Merger and Bar are two aspects of res judicata that prevent the plaintiff from maintaining another suit on the same cause of action (Merger) and prevent a plaintiff from suing the defendant again for the same cause of action,where the defendant has prevailed in the case (bar). The questions for analyzing whether a COA is the same COA are:
1. Is it claimed that the same right has been infringed by the same wrong in both proceedings?
2. Are the supporting facts in both cases the same?
3. Are the same legal principles applicable to both proceedings?

Front 13

What is "collateral estoppel?" When is it used?

Back 13

If the COA is different in a second proceeding, but an issue resolved in the first litigation is again raised in the 2nd suit, collateral estoppel will apply, and resolution of the issue of fact in the first suit will be binding on the parties in the 2nd suit.

Front 14

What is the "conclusion" regarding the due process and full faith and credit clauses?

Back 14

Should one receive a bar exam question dealing with the due process or the full faith and credit limitations on a state's choise of law:

"Generally speaking, if the forum state has any significant contacts with the parties or the subject matter of the action whereby it has a legitimate interest in regulating the outcome of the the litigation, it is not constitutionally bound to apply the foreign state's law. Only when the forum state has no contact at all with the parties or the subject matter of the dispute would it be required to apply a foreign state's conflicting law by reason of either the Due process or the Full Faith and Credit Clause of the Constitution.

Front 15

What is the first restatement's "Vested Rights" approach to conflicts of laws? How is it analyzed?

Back 15

Under the 1st restatement's vested rights approach, the world is divided into geogrphical units, and the law operable in any given case is that of the geogrphical unti in which the parties' rights vested, meaning where the particular act occurred or where the relationship was created. In determining where the "vesting" occurred, the following 3-step analytical approach should be applied:
1. Characterize the area of substantive law
2. deterine the particular choice of law rule.
3. Localize the rule to be applied by identifying the jxd prescribed under the rule.

Front 16

What is the 2nd restatements's "Most significant relationship" approach to conflicts of laws?

Back 16

The 2nd restatement seeks to identify the state that has the most significnt relationship with respect to the issue at hand and then apply that state's law on that issue. Application of the "most signification relationship" approach requires analysis of:
1. the connecting facts in a given case(specific contacts with each jurisdiction) and 2. policy-oriented principles

Front 17

What are the policy-oriented pricinples that are to be analyzed under the 2nd restatement?

Back 17

1. The needs of the interstate or internation systems
2. The relevant policies of the forum
3. The policies and interests of the other interested jxd.
4. Justified expectations of the parties to be protected.
5. The basic policies under the particular substantive field of law.
6. Will application of a given law aid certainty, predictability, and uniformity
7. Will the determiation and application of a specific law be made with ease?

Front 18

What is the First Restatement Rule for Choice of Law for Torts?

Back 18

The tort choice of law rule under the traditional vested rights approach is the law of the place of the wrong. The place of the wrong will determine both the nature and the extent of liability in tort. The "place of wrong "is the place where the last event giving rise to liability occurred" ,i.e. the place of inury.

Front 19

What is the second restatement Rule for Choice of Law for Torts?

Back 19

The same "7 policy principles" are applicable to all areas of laws. In determining which state has the most significant relationship to both the occurrence and the parties, the court in tort cases will look at:
1. The place of injury
2. The place where the conduct causing the injury occurred
3. The domicile, residence, nationality, place of incorporation, and place of business of the parties; and
4. The place where the relationship, if any between the parties is centered.
Generally, the law of the place of injury generally controls.

Front 20

What are the first and second restatements' rules for the existence of a cause of action? Governmental interest approach?

Back 20

Under the 1st restatement, the law of the place of the wrong determines whether a cause of action in tort exists.
Under the 2nd restatement, the law of the jurisdiction with the most significant relationship to the occurrence or parties determines whether a cause of action exists. Under the governmental interest approach, the forum state looks to its own law in determining whether a cause of action is created,assuming it has a legitimate interest in applying its own law.

Front 21

What are the various choice of law rules for applicability of guest statutes?

Back 21

Under the first restatement, the guest rule of the state where injury occurred is applied. under the 2nd restatement, the law of the state w/ the most significant relationship to the transaction is applied.

Front 22

What are the various choice of law rules for intrafamily torts?

Back 22

Under the 1st restatement, the law of the place of the wrong is applied to determine whether a suit in tort may be brought between parent and child or husband and wife.

Under the 2nd restatement, the place of common domicile is usually deemed to be the state w/ the most significant relationship to the issue of intrafamily torts.
Under the governmental interest approach, the law of the state of common domicile would apply if the suit was brought in said state.

Front 23

What are the various choice of law approaches for the defense of charitable immunity?

Back 23

Under the 1st restatement, applicability of the charitable immunity defense is controlled by the place of the wrong. It is not governed by the defendant charity's place of incorporation. Under the 2nd restatement, the courts look to the places of injury and of the conduct causing the injury in determining the place w/ the most significant relationship.

Front 24

What are the various choice of law approaches for vicarious liability?

Back 24

Under the 1st restatement approach, the place of the wrong governs the questions of vicarious liability. However, this can have a harsh result if the place of wrong is different from the place where the employment relationship was created or the place of transfer of possession. Therefore, some states will characterize cases as lying in contract rather than in tort to reach a different result.

Under the 2nd restatement, vicarious liability is determined by the law of the state having the most significant relationship to the transaction.

Front 25

What are the various choice of laws approaches for dram shop cases?

Back 25

Under the 1st restatement approach, the court will apply the law of the place of the wrong.
Under the 2nd restatement approach, the law of the state having the most significant relationship to the case will apply.

Front 26

What are the various choice of law approaches for damages for tort cases?

Back 26

Under the 1st restatement, the law of the place of the wrong will determine the amount of damages recoverable in a tort action.
Under the 2nd restatement, the law of the place having the most significant relationship to the transaction will determine the amount of damages recoverable in a tort action.

Front 27

What are the various choice of law approaches for contribution among joint tortfeasors?

Back 27

The law of the place of the wrong, under the first restatement approach, is applied to determine whether contribution amount joint tortfeasors is available.

2nd restatement- looks to the law generally governing the case. However, it indicates that a different result might arise if both tortfeasors are domicile in the same place, particularly if there is a special relationship between them.

Front 28

What are the various choice of law approaches for survival and abatement actions?

Back 28

Whether an action in tort survives the death of the plaintiff is governed under the 1st restatement by the law of the place of the wrong.
The 2nd restatement looks to the law of the state with the most significant relationship.

Front 29

What are the various choice of law provisions for wrongful death actions?

Back 29

Under the 1st restatement, the existence of a cause of action for wrongful death depends on the law of the state where the wrong occurred. The wrong is deemed to have occured at the place where the injuries resulting in death occurred.

The second restatement would apply the law of the state where the injury occurred unless some other state has a more significant relationship to the parties and the occurrence.