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130 Cards in this Set

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How do I spot a conflict of laws question?
"First - There will always be 2 or more states

Second - If for ""states names"" they use the alphabet - it's likely a conflict question

Conflicts will be wrapped into a fact pattern with other subjects - family, federal procedure"
What are the areas of testing in Conflict of Laws?
"1 - Recognition of Judgments

2 - Choice of Laws"
How do I tell if it's a "recognition of judgments" question?
"1 - In the fact pattern, they will tell you that a judgement has been rendered in one jurisdiction

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 jursidiction"
If I have a "recognition of judgment" question, what do I call the two states?
"The state handing down the judgment = the Rendering State

The state called upon to recognize the J = the Recognizing State"
What's the first question to ask in a recognition question?
"Is it a sister state or a foreign country judgment that requires recognition?

It's almost always a sister state. "
Okay - it's a sister state J - What's the first step of analysis?
Is it entitled to Full faith & Credit?
What if the judgment is not entitled to Full Faith and Credit?
Deny recognition - with one exception (modifiable alimony payments in divorce decrees - recognized on comity principles or by statute)
What are the steps for analyzing Full Faith and Credit?
"1 - Are the three full faith and Credit requirements satisfied

2 - Are there any good defenses to full faith and credit?"
So, what are the REQUIREMENTS for Full Faith & Credit?
"1 - Jurisdiction must have been proper in the rendering state

2 - Judgment must have been on the merits

3 - Judgment must have been final"
Doofus' case against Bowater was dismissed in State X because the statute of limitations had run. Doofus tried to bring the same lawsuit again in State Y and Bowater asserted the earlier judgment against him as a bar. What's the result?
Can't bring a lawsuit because the earlier decision was not on the merits
Lulu obtains a default judgment against Bowater in State A, can she enforce it in State B?
Yes - default judgments are on the merits
Lulu obtained a divorce decree in state X against Bowater and $1,000 per month in modifiable alimony payments. Can she get it enforced as to future payments in State Y based on full faith and credit?
No, modifiable nature of the decree makes it non modifiable
Lulu obtained a divorce decree in state X against Bowater and $1,000 per month in modifiable alimony payments. Can she get it enforced as to future payments in State Y based on something OTHER than full faith and credit?
Most states will recognize the judgment based on general COMITY principles or by STATUTE (particularly in the family law area)
Whose state law do I use in determining whether Full Faith & Credit requirements?
The rendering state's law.
Doofus obtains a judgment against Bowater in State A and seeks to enforce it against him in State B. Jurisdiction was proper in State A, but would not be proper under state B law. What result?
This is enforceable because it is proper under rendering state law.
If the requirements of Full Faith & Credit are met, then what?
Are there any good defenses to full faith and credit.
What are the good defenses to Full Faith & Credit
"1 - Judgment is penal
2 - Judgment was obtained through extrinsic fraud"
What does it mean that something is a "penal judgment"
That it punishes an "offense against the public."
What's a quick way of telling if something is a penal judgment or not?
"In order for you to conclude that a judgment is penal, the plaintiff must be the state.

If a person or corporation is the plaintiff the judgment is NOT penal"
Doofus recovers a judgment that has tiny actual damages and major punitive damages from Bowater. Is this a punitive judgment?
No, it's not an offense against the state.
What does it mean to be an INTRINSIC fraud? An EXTRINSIC fraud?
If the fraud could have been dealt with during the earlier trial within the regular workings of the judicial system, it's INTRINSIC fraud. If not, it's EXTRINSIC fraud.
Doofus obtained a judgment against Bowater by perjuring himself. Can Bowater use this as a good defense against the recognition of this judgment?
No, it's INTRINSIC fraud. It could have been dealt with in the trial.
Doofus obtained a judgment against Bowater by bribing the judge. Can Bowater use this as a good defense against the recognition of this judgment?
Yes, this is EXTRINSIC fraud.
What are the BAD defenses to Full Faith & Credit?
"1. It is a tax judgment/
2. The judgment is contrary to the recognizing state's public policy.
3. Mistake of Fact and/or Law were made "
In Nevada, gambling debts cann be enforced. Kansas, not so much. Doofus gets a judgment against Bowater to enforce a gambling debt in Nevada. Can he enforce it in Kansas?
Yes
What do I do if there were mistakes of fact or law if I can't stop enforcing it in the recognizing state?
Appeal. Duh!
How are foreign country judgments recognized? What's it called?
It's called COMITY, and foreign country judgments are basically recognized on the same basis as sister state judgments. There's one test, though.
What test do courts apply to foreign country judgments?
Court looks to see if our due process standards were satisfied.
How does a court tell if our due process standards are satisfied in recognizing a foreign country judgment?
1. Whether jurisdiction was proper.

2. Whether SHAM procedures were used during the earlier litigation.
What's an example of SHAM procedures that might invalidate due process analysis in recognition of foreign country judgments?
A party not allowed to question witnesses.
What are the types of family law judgments that can be tested in conflict of laws questions?
1. Divorce decrees
2. Ancillary matters - property and custody awards
What's the major question in family law conflict of laws questions?
Generally, the primary focus is on whether JURISDICTION was proper.
What's the process for a nalyzing divorce decrees?
2 steps

1 - Determine if jurisdiction was proper
2 - Determine if the person attacking jurisdiction was estopped from doing so.
What's the jurisdiction test for divorce decrees?
At least one spouse must be DOMICILED in the rendering state.
Chauncy and Wilma live in State A. They go to State B and secure a divorce claiming they're State B domiciliaries even though they're not.
Jurisdiction was not proper in State B, the divorce decree will not be recognized.
Who is estopped from attacking an earlier divorced decree's jurisdiction?
1. Persons subject to PERSONAL jurisdiction in the earlier proceeding.

2. Persons who played a MEANINGFUL role in the earlier proceeding - paid for its expenses.

3. Persons who are in PRIVITY with parties to the earlier proceeding (children)

4. Persons who MARRY or REMARRY in reliance on earlier proceeding.
When is jurisdiction for property awards in family law proper?
If there was PERSONAL JURISDICTION over the spouse whose PROPERTY rights were at issue.
When is jurisdiction for custody awards in family law proper?
Jurisdiction is proper if the rendering court is that of the CHILD'S HOME STATE.
Chauncey and Wilma live in State A. They have two children. Wilma goes to State B without the children, secures domicile and a divorce in a proceeding without personal jurisdiction over Chauncey. Court also awards her $1,000 per month in alimony and custody of the children. Is this valid?
No - court doesn't have PJ over Chauncey (for the alimony) and it wasn't the child's home state (for custody)
What is the 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.

The divorce is valid, the other parts are not.
When do I analyze domicile?
It will be an issue in a broader analysis. Something else depends on a domicile determination.
Who can have domicile?
Only one who has domicile capacity - ie the ability to fend for oneself.
What's the test for domicile?
1. Physical presence in a place
2. Intent to be domiciled in that place.
Lulu has always lived in LA. Last week she came to Chicago to work for the law firm of B&B. She began work and opened a bank account. Where is she domiciled?
Chicago - b/c she intended to be domiciled there. A short time in a location okay, as long as intent to domicile there
Charlie moved from Dallace to New York to avoid responsibility for his wife and 7 kids and evade criminal charges he thought would be brought against him. Where is he domiciled?
New York - regardless of motive he wanted to be domiciled there and had physical presence
What if you have multiple residences
The primary residence is the domicile
What domicile do infants have?
Parents' domicile
What domicile do mental incompetents have?
Parents, or if incompetent after having acquired a domicile, retains domicile of choice
What will choice of law fact patterns look like?
One or more states
What question does choice of law ask?
Which state's law governs.
What's the answer to the question of state's law governs?
It will be the law selected by the forum court using its choice of law approach (subject to constitutional and statutory limitations)
When is there a constitutional limitation to choice of law?
ONLY when the law applied is from a state not having ANY significant contact with and/or legitimate interests in the litigation - almost never happens.
What are the statutory limitations to choice of law?
These are either state or federal statutes directing the court as to what it MUST or CANNOT apply - borrowing statutes of limitation, federal patent law (can only be in federal court)
What are the three major choice of law approaches?
1 - Vested rights approach (first restatement)

2 - Most significant relationship approach (2nd restatement)

3 - Governmental interest approach
What is the first restatement approach to choice of law?
Vested Rights
What is the second restatement approach to choice of law?
Most significant relationship test
What do I say for vested rights approach (first restatement)?
First sentence - characterize the substantive area of law involved ("this is a torts case")

Second sentence: State the appropriate vesting rule (e.g. place of injury)

Third sentence: State what state "wins" i.e where the rights vest (e.g. The injury occurred in Nebraska, therefore Nebraska law applies)

4th Sentence: State the Result (E.g. "Under NE's law, there is intrafamily tort immunity and, thus, Husband cannot recover against Wife.)
What do I say for most significant relationship (2nd Rest) answer?
1st. S - "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 to (i) connecting facts and (ii) certain policy principles.

2 - Discusss the connecting facts - where did they occur and what are they.

3 - Discuss policy principles - the most important are those that require you to look at the interests of the forum and all other factually connected jurisdictions.

4 - state what state wins and the result
What's very important to determine for the 1st Rest or 2nd Rest approach to choice of law?
Determine the substantive area of law. Tells when rights vest (1st Rest), and tells what connecting facts most important (2nd Rest)
How do I answer when it's governmental interest method of determining Choice of Law?
1P - 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.

2P Discuss whether the forum state has a legitimate interest in the outcome of the litigation. (If none, discuss the interests of the other states)

3P? State what state wins
Do I look for the greatest interest under the "governmental interest" test? What's the impact of the answer?
No, any LEGITIMATE interest will suffice.

Therefore, the forum state almost always wins
What about federal courts in diversity cases, which choice of law analysis do they use?
They use the choice of law for the state they are situated in.
When will a federal court in diversity not apply the choice of law rules of the state it's in?
When the case has been transferred - then it will apply the conflict rules of the transferring state.
What do I do if it's a torts case in a vested rights (1st Rest) approach?
Vested Rights approach - Place of injury
What do I do if it's a torts case in a "most significant relationship/most significant facts" (2nd Rest) approach?
Important facts:

1. Place of injury
2. Place of conduct causing injury
3. Place of "home" state (domicile/inc/place of business)
4. Place where the relationship, if any, b/w parties is centered

Place of injury = most significant fact
Anything I should know about INTRAFAMILY torts?
Under 2nd Rest - the MOST significant fact is the place of COMMON DOMICILE
Anything I should know about Multiple state torts?
Since injury was probably greatest in P's domicile - most states apply that law.
Is there a choice of law issue in Workers' comp?
No - this is an administrative tribunal, so it always applies its own workers' comp statute.
Can a worker recover under more than workers compensation act?
Yes - not, however, that any prior recoveries will be credited against subsequent ones.
D recovers $17k (max allowed) in state Red. Later, he brings action in State Blue which allows more. He's awareded $27k. Result
Wins $27k - 17k = $10k
Can a worker recover under workers comp and under common law tort?
Yes, if the defendant does not have immunity under the workers' comp act.
Who has immunity under workers comp act?
The employer has immunity.
D is injured at plant by defective equipment (with a design defect). Result?
Recover under Workers Comp, then later under common law tort against manufacturer of equipment.
What's the threshold conflicts question in a contracts case?
Determine if there's a valid express choice of law provision.
There's an express choice of law provision in this contract. Am I good?
Make sure it's valid!
Why might I invalidate a choice of law provision?
1. Law selected is that of a state having no reasonable relationship with the K

2. No true mutual assent
D (from KS) and B (MO) enter into K to be performed in those two states, apply AK law. Result?
Invalid choice of law provision - no reasonable relationship with K
D (from KS) and B (MO) enter into K to be performed in those two states. D persuades B to apply KS law by misrepresenting some aspects of it. Result?
Invalid choice of law provision - no mutual assent.
I've got a choice of law provision, and I'm just not sure if it's valid?
When in doubt, find it invalid - gives more opportunity to discuss issues on test.
What do I do for contract questions in Vested rights (1st Rest) approach?
Formation problems - place of execution

Performance problems - place of performance
What do I do for contract questions in most significant relationship/most significant facts approach (2nd Rest)?
Most significant facts:

1. Place of negotiation
2. Place of execution.
3. Place(s) of performance
4. Place of home state
5. Place where the subject matter, if any, is located

If place of negotiation/performance are the same, probably most significantly related.
Are there times when other facts are important in contract cases?
Yes, land contracts, for example.
Any hints for most significant relationship (2nd Rest) contracts issues?
Don't worry about the list for different types of K, just find commonsense facts and nail the opening paragraph.
What should I know about capacity issues in K?
Under 1st Rest it's a formation issue

Under 2nd Rest it's governed by the law of the domicile of the party involved
Any special issues with assignment of K rights/delegation of duties?
They are two contracts involved here - the main one and the one seeking to assign rights/delegate duties - make sure you discuss the one they want you to.
How do I handle real property under 1st Rest (vested rights)?
Situs of property
How do I handle real property under 2nd Rest (most significant relationship)?
Situs of property
How do I handle personal property transferred inter vivos under 1st Rest (vested rights)?
Situs of property at the time of the relevant transaction
How do I handle personal property transferred inter vivos under 2nd Rest (most significant relationship)?
Situs of property at the time of the relevant transaction
How do I handle personal property transferred by inheritance under 1st Rest (vested rights)?
Domicile of decedent at time of death
How do I handle personal property transferred by inheritance under 2nd Rest (most significant relationship)?
Domicile of decedent at date of death
D bought a car in FL 2 months ago and drove it to CA where he lives. The sale is now subject of litigation. What law governs?
Intervivos transfer - situs at time of related transaction - FL
D bought a car in FL 2 months ago and drove it to CA where he lives. He then dies. At issue is which heir is entitled to car. What law governs?
Inheritance matter - domicile of decedent at date of death = CA
Choice of law in marriage issues
If a marriage is valid where it is performed, it will be recognized as valid everywhere.

exception - where domiciliares 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 will not recognize.
C & W live in State X, and want to get married, but X prohibits their union. They drive to State Y for the day and get married. Will State X recognize their marriage?
No
C & W live in State X, and want to get married, but X prohibits their union. They drive to State Y for the day and get married. Three years later they move to State Z. Will State Z recognize their marriage?
Yes
What do I do with premarital contracts choice of law issues?
Analyze them like contracts.
Are there choice of law issues in divorce?
No - always apply forum state rules in divorce.
Are there choice of law issues in illegitimacy
Two:

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

2. Validity of subsequent acts of legitimation are governed by the law of father's domicile.

Modern trend: Valid if sufficient under the law of EITHER the father's or child's domicile
Are there defenses to choice of law analysis
1. Against forum's public policy (very weak)

2. Substance/procedure dichotomy
Is the against public policy a good defense against choice of law?
Not really. Almost never accepted. Under modern, policy-oriented approach, it's not even a defense, but a part of the basic analysis.
What's the substance/procedure dichotomy?
The forum will use its choice of law approaches to determine which SUBSTANTIVE law to apply. If the matter is PROCEDURAL it applies its own law.
How do I approach a substance/procedure question?
Opening sentence: At issue is whether [this law] is substantive or procedural, for if it is procedural, the forum will apply its own law.
What about Statutes of limitation?
Bar exam favorite.

General rule = procedural
When might a statute of limitation not be procedural?
1. Borrowing statute
2. Statute conditions SUBSTANTIVE RIGHT
How will I know if a statute of limitation is subject to a borrowing statute?
They'll give you the borrowing statute!
Tell me again, what's a borrowing statute?
It's a statute, where the forum is told to use the SHORTER time limit, forum's or other state
What's the deal with a statute that conditions a substantive right?
If you apply another state's statute which creates a substantive right, you should apply the ENTIRE statute including its otherwise procedural type provisions.
State X, the forum, after applying its choice of law approach decides the wrongful death act of State Y should govern litigation. State X has a 2 year limit for these lawsuits, State Y has a 3 year limit. Which state applies
State Y - it's a statute that conditions a substantive right
What's the modern trend for Statutes of limitation
Treat them as substantive and subject to choice of law analysis - apply SoL of the MOST SIGNIFICANTLY RELATED state
What should I do, then, with a statute of limitations question on the exam?
If the call of question doesn't tell you otherwise, you should discuss

BOTH the PROCEDURAL and SUBSTANTIVE positions
What's the opening sentence for a federal court/diversity issue
Federal courts sitting in diversity jurisdiction will apply the conflicts rules of the state in which they are sitting.
What's the opening sentence for a substance/dichotomy issue?
In issue is whether [this law] is substantive or procedural, for if it is procedural the forum will apply its own law.
What's the opening paragraph for the 2nd Rest (most signficant relationship) approach
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"
What's the opening paragraph in the governmental interest approach?
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.

Remember: the forum almost always has a legitimate interest and applies its own law.
How do I remember the vested rights?
PISSED

P - Performance - Contract performance issues
I - Injury - Torts
S - Situs - Real Property Cases
S - Situs at the time of relevant transaction - personal property inter vivos transaction
E - Execution - K formation issues
D - Domicile of Decedent @ death - Personal Property Inheritance matters
Can a third party rely on collateral estoppel in KS?
No, Kansas follows the traditional rule of mutuality. Strangers cannot have this prior judgment asserted against them, therefore they cannot use it to their benefit.
What's the appropriate law for child custody in KS?
KS has adopted the Uniform Child Custody Jurisdiction and Enforcement Act
Does KS look to the underlying motive in determining domicile?
Yes - so, in tax avoidance and out-of-state tuition charges, declared intention is given little weight.
What approach of choice of law does KS follow?
First restatement vested rights approach.

With some escape devices.
Do KS Courts always apply the rigid vested rights approach to choice of law?
No, they have some escape devices:

1. Characterization - The courts may recharacterize a case to get the outcome it desires.

2. Public Policy exception

3. Renvoi
How might a KS court recharacterize a case to avoid rigid application of vested rights approach
A contracts case provides a question of either formation (place of contracting) or performance (place of performance). So, the characterization of the problem would be critical
How might a KS court use the public policy exception to avoid the rigid application of vested rights approach
Very limited public policy exception - a forum could dismiss a case if enforcement of another state's law would be contrary to a strong public policy of the forum, or it could substitute its own law for the offending law of the other state
What is renvoi doctrine in KS?
KS courts may choose to apply the choice of law provisions of the other state if that gives a better result.
What are the possible outcomes of revoi doctrine?

KS
1. Remission - conflicts law of the second state send matter to forum state. If only the internal law of the forum state - remission = partial

2. Transmission - conflicts rules of 2nd state refer tthe forum state to the law of a 3d state. Partial or total like remission

3. Never ending circle - both states refer to other state's whole law, never ending circle
What law does KS follow in Contracts formation choice of law?
KS follows the first restatement approach and the law of the last event occurred giving rise to the contract formation governs.
What law does KS follow in Contracts when distinguishing between performance and validity?
Inconsistent

Some courts rely on whether the place of performance of the place of contracting is more likely to validate the contract in order to enforce the intent of the parties.
What law does KS follow in Property when doing choice of law?
First restatement approach

Either the law of the place of contracting or law of situs of property
What arguments exist in KS against application of foreign law?
A strong public policy of Kansas can be substituted for an offending policy of another state
Will KS apply its borrowing statute in Statutes of Limitations cases?
Yes, unless individual is resident of KS AND individual has held the cause of action from the time it accrued.