Conflict Of Laws

Front 1

Spotting a conflicts question

Back 1

Three will always be two or more states

Front 2

Four exam testing areas

Back 2

1. Jurisidiction
2. Recognition of Judgments
3. Domicile
4. Choice of Law

Front 3

1. Jurisidction

Back 3

Look for this in a recognition of judgments questions as this is a full faith + credit requirement

Front 4

Spotting a recognition of judgments question

Back 4

1. Judgment rendered in one jurisidiction.
2. The call of the question has a party seeking to recognize it in another jurisidiction

Front 5

Rendering State

Back 5

State that handed the judgment down

Front 6

Recognizing State

Back 6

State called upon to recognize and enforce the judgment

Front 7

Threshold judgment recognition questions

Back 7

Is it a sister state or foreign country judgment requiring recognition?

Front 8

Recognition of Sister State Judgments

Back 8

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

Front 9

Three full faith + credit requirements

Back 9

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)

Front 10

What are good and bad defenses to full faith + credit

Back 10

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

Back 11

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)

Front 12

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)

Front 13

1. It is a tax judgment

Back 13

BAD DEFENSE (doesn't work)

Front 14

2. The judgment is contrary to the recognizing state's public policy

Back 14

BAD DEFENSE (doesn't work)
NV gambling debts in Kansas are still enforceable

Front 15

3. Mistakes of law and/or fact were made

Back 15

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

Front 16

Foreign Country Judgments

Back 16

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)

Front 17

Family Law Judgement Types

Back 17

1. Divorce Decrees
2. Ancillary Matters: Property & Custody Awards

Front 18

Divorce Decree Analysis

Back 18

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

Front 19

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

Front 20

Property and Custody Awards Analysis

Back 20

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

Front 21

Divisible Divorce Doctrine

Back 21

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

Front 22

3. Domicile
Two types:

Back 22

1. Domicile of Choice
2. Domicile by Operation of Law

Front 23

Opening sentence in domicile answer

Back 23

Set out why you are discussing domicile

Front 24

Domicile of Choice is ...

Back 24

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

Front 25

Domicile of Choice two-part fact test:

Back 25

1. Physical presence in a place
2. An intent to be domiciled in that place

Front 26

Domicile of Choice
Favorite Bar Exam Fact Issues

Back 26

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

Front 27

Domicile by Operation of Law

Back 27

domicile assigned to one who lacks domicile capacity

Front 28

Domicile by Operation of Law
Infants

Back 28

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

Front 29

Domicile by Operation of Law
Mental Incompetents

Back 29

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

Front 30

3. Choice of Law

Back 30

This will involve litigation having factual contacts with more than one state

Front 31

The choice of law question and answer?

Back 31

Which state law governs?
The law selected by the forum court using its choice of law approach (subject to constitutional and statutory limitations)

Front 32

Constitutional Limitions to Choice of Law

Back 32

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.

Front 33

Statutory Limitations to Choice of Law

Back 33

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)

Front 34

Choice of Law Approaches

Back 34

1. Vested Rights Approach
2. Most Significant Relationship Approach
3. Governmental Interest Approach

Front 35

Vested Rights Approach

Back 35

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)

Front 36

Most Significant Relationship Approach

Back 36

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

Front 37

Governmental Interest Approach

Back 37

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)

Front 38

Create a Facts Ledger

Back 38

1. Put in the Forum
2. Put in the differing law and the differing results
3. Put in the facts

Front 39

Federal Courts/Diversity Cases
RULE

Back 39

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

Front 40

Federal Courts/Diversity Cases
EXCEPTION

Back 40

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

Front 41

Choice of Law: Specific Substantive Law Areas
Vested Rights Memorizer

Back 41

PISSED
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

Front 42

Choice of Law: Specific Substantive Law Areas
TORTS
Vested Rights Approach

Back 42

Place of Injury

Front 43

Choice of Law: Specific Substantive Law Areas
TORTS
Most Significant Relationship Approach

Back 43

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

Front 44

Choice of Law: Specific Substantive Law Areas
TORTS
Most Significant Relationship Approach (NOTES)

Back 44

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

Front 45

Choice of Law: Specific Substantive Law Areas
WORKERS' COMPENSATION
Preliminary Note

Back 45

There are no choice of law problems since this is an administrative tribunal case and it will always apply its own workers' compensation statute

Front 46

Choice of Law: Specific Substantive Law Areas
WORKERS' COMPENSATION
Bar Exam Test Items

Back 46

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?

Front 47

1. Can the worker recover under more than one workers' compensation suit?

Back 47

Yes, but any prior recoveries will be credited against subsequent ones.

Front 48

2. Can the worker recover under the workers' compensation act and in a common law tort proceeding?

Back 48

Yes, if the defendant has not been given immunity under the act (employers have immunity)

Front 49

Choice of Law: Specific Substantive Law Areas
CONTRACTS
Threshold inquiry

Back 49

Determine if there is a valid express choice of law provision. If so, the provision governs

Front 50

Choice of Law: Specific Substantive Law Areas
CONTRACTS
Reasons to invalidate a Choice of Law Provision

Back 50

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

Front 51

Choice of Law: Specific Substantive Law Areas
CONTRACTS
If there is no valid express choice of law provision...

Back 51

the basic choice of law rules will govern your answer

Front 52

Choice of Law: Specific Substantive Law Areas
CONTRACTS
Vested Rights Approach

Back 52

1. Contract Formation Problems: Place of EXECUTION
2. Contract Performance Problems: Place of PERFORMANCE (or primary performance if in more than one state)

Front 53

Choice of Law: Specific Substantive Law Areas
CONTRACTS
Most Significant Relationship Approach

Back 53

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)

Front 54

Choice of Law: Specific Substantive Law Areas
CONTRACTS
Capacity Issues

Back 54

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

Front 55

Choice of Law: Specific Substantive Law Areas
CONTRACTS
Assignment of Contract Rights, Delegation of Duties

Back 55

Note there are two contracts to possible discuss, the main one and the one seeking to assign rights/delegate duties (discuss the right contract)

Front 56

Choice of Law: Specific Substantive Law Areas
PROPERTY
Preliminary Note

Back 56

Both the Vesting Approach and the Most Significant Facts Approach have the same rules

Front 57

Choice of Law: Specific Substantive Law Areas
PROPERTY
Real Property

Back 57

Rule: Situs
This covers both inter vivos transactions and inheritance matters

Front 58

Choice of Law: Specific Substantive Law Areas
PROPERTY
Personal Property

Back 58

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

Front 59

Choice of Law: Specific Substantive Law Areas
FAMILY LAW

Back 59

Marriage
Divorce
Legitimacy

Front 60

Choice of Law: Specific Substantive Law Areas
FAMILY LAW
Marriage Rule

Back 60

If a marriage is valid where it is performed, it will be recognized as valid everywhere

Front 61

Choice of Law: Specific Substantive Law Areas
FAMILY LAW
Marriage Exception

Back 61

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

Front 62

Choice of Law: Specific Substantive Law Areas
DIVORCE

Back 62

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

Front 63

Choice of Law: Specific Substantive Law Areas
LEGITIMACY

Back 63

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

Front 64

Defenses to Choice of Law

Back 64

1. Foreign law is against forum's public policy (almost never accepted)
2. Substance/Procedure Dichotomy

Front 65

Defenses to Choice of Law
Substance/Procedure Dichotomy

Back 65

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

Front 66

Substance/Procedure Dichotomy
GENERAL RULE

Back 66

Statute of Limitations are treated as procedural. Thus, the forum will apply its own statute

Front 67

Substance/Procedure Dichotomy
EXCEPTIONS

Back 67

1. Time limit set by Contract (as a general rule, these will govern)
2. Borrowing Statutes
3. Statute Conditions Substantive Right

Front 68

Substance/Procedure Dichotomy
EXCEPTIONS
Borrowing Statutes

Back 68

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)

Front 69

Substance/Procedure Dichotomy
EXCEPTIONS
Statute Conditions Substantitive Right

Back 69

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)

Front 70

Substance/Procedure Dichotomy
Modern Trend

Back 70

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)

Front 71

Substance/Procedure Dichotomy
DISCUSS BOTH

Back 71

the general rule (procedural) and the modern trend (substantive) positions

Front 72

MINI-REVIEW
Federal Court/Diversity Jurisdictional Issue

Back 72

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)

Front 73

MINI-REVIEW
Substance/Procedure Dichotomy

Back 73

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"

Front 74

MINI-REVIEW
Most Significant Relationship Approach

Back 74

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]

Front 75

MINI-REVIEW
Governmental Interest Approach

Back 75

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"

Front 76

Vested Rights Memorizer

Back 76

PISSED
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