Conflicts Of Law

Front 1

Spotting a Conflicts Question

Back 1

(1) There will always be two or more states

(2) If, for "state names", they use the alphabet, it's almost guaranteed to be conflicts

**Conflicts will be "wrapped" into a fact pattern with other subjects (ex. family law, federal pro)

Front 2

Two Exam Testing Areas

Back 2

(1) Recognition of Judgments

(2) Choice of Law

Front 3

Spotting a Recognition of Judgments Question

Back 3

(1) In the fact patter they will tell you that a judgment 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 jurisdiction.

Front 4

Rendering State

Back 4

State handing down the judgment

Front 5

Recognizing State

Back 5

State called upon to recognize and enforce

Front 6

Threshold Recognition of Judgments Exam Inquiry

Back 6

Is it a sister state or foreign country judgment that requires recognition?

**It will almost always be a sister state judgment.

Front 7

Sister State Judgments: Threshold Recognition of Sister State Judgment

Back 7

Is it entitled to full faith & credit?

**IF the answer to this question is NO, deny recognition---with one exception noted below.

Front 8

Full Faith & Credit Analysis

Back 8

(1) Are the three full faith and credit requirements satisfied?

(2) Are there any good defenses to full faith and credit?

Front 9

Full Faith and Credit Requirements

Back 9

(1) Jurisdiction must have been proper in the rendering state court.

(2) Judgment must be on the merits.

(3) Judgment must be final.

Front 10

Good Defenses to Full Faith and Credit

Back 10

(1) Judgment is penal

(2) Judgment was procured by extrinsic fraud.

Front 11

Good Defense: Penal Judgment

Back 11

***In order for you to conclude that a judgment is penal, the plaintiff must be the state.

**If a private person is the plaintiff, the judgment is not penal.

**It's the "heavy duty" punitive damages fact pattern.

Front 12

The Characterization Process: "Extrinsic" vs. "Intrinsic" Fraud Test

Back 12

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.

Front 13

Bad Defenses to the Full Faith and Credit

Back 13

(1) Tax Judgment

(2) Judgement is contrary to recognizing state's public policy.

(3) Mistakes of law and/or fact were made.

Front 14

Foreign Country Judgments

Back 14

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:

(1) Whether jurisdiction was proper (minimum contacts)

(2) Whether "sham procedures" were used during the earlier litigation.

Front 15

Family Law Judgments

Back 15

(1) Divorce Decrees

(2) Ancillary Matters: Property and Custody Awards

**For both, the entire recognition analysis already described is applicable. The primary focus, however, is on whether jurisdiction was proper. The type jurisdiction, however, is different depending on the type of family law judgment involved.

Front 16

Family Law Judgments: Divorce Decrees

Back 16

(1) Determine if jurisdiction was proper.

(2) Determine if the person attacking jurisdiction is estopped from doing so.

Front 17

The Jurisdiction Test

Back 17

At least one person must be domiciled in the rendering state.

Front 18

The Estoppel Checklist

Back 18

(1) Persons subject to personal jurisdiction in earlier proceeding

(2) Persons who played a meaningful role in the earlier proceeding

(3) Persons who are in privity with parties to the earlier proceeding

(4) Persons marry or remarry in reliance on earlier proceeding.

Front 19

Family Law Judgments: Ancillary Matters

Back 19

Must determine if jurisdiction is proper!

(1) For property awards, jurisdiction was proper if there was personal jurisdiction over the spouse whose property rights were at issue.

(2) For custody awards, jurisdiction is proper if the rendering court is that of the child's home state.

Front 20

Divisible Divorce Doctrine

Back 20

IF the divorce decree jurisdictional requirement is satisfied and the ancillary award jurisdictional requirements are not, the law regards the judgment as severable

Front 21

Determination of Domicile: Two Types

Back 21

(1) Domicile of Choice

(2) Domicile by Operation of Law

Front 22

Domicile of Choice

Back 22

Acquired by one who has "domicile capacity"

(1) Physical Presence

(2) Intent to be domiciled in there place

**Physical presence can be for a short time as long as intent is clearly manifestted.

**Do not confuse intent with motive

**If one has multiple residences, the primary one is his/her domicile.

Front 23

Domicile by Operation of Law

Back 23

This is domicile assigned to one who lacks

(1) Infants: assigned to domicile of their parents
(2) Mental Incompetents: assigned to domicile of his/her parents, unless had a domicile of choice before becoming so.

Front 24

Choice of Law: Fact Pattern

Back 24

It will involve litigation having factual contacts with more than one state.

Front 25

Choice of Law: Which state law governs?

Back 25

It will be the law selected by the forum court using its choice of law approach.

(subject to constitutional and statutory limitations)

Front 26

Choice of Law: Limitations

Back 26

(1) Constitutional Limitations

(2) Statutory Limitations

Front 27

Constitutional Limitations

Back 27

The only time there's a constitutional limitation under either due process or full faith and credit is where the law applied is that of a state not having any significant contacts with and/or legitimate interest in the litigation.

Front 28

Statutory Limitations

Back 28

Either state or federal statutes directing the court as to what it must or cannot apply

Front 29

Choice of Law Approaches

Back 29

(1) Vested Rights Approach

(2) Most Significant Relationship Approach

(3) Governmental Interest

Front 30

Vested Rights Approach
(First Restatement)

Back 30

(1) Characterize the substantive area of law involved

(2) State the appropriate vesting rule

(3) State what state "wins" (i.e. where the rights vest)

(4) State the result

Front 31

Most Significant Relationship Approach
[Second Restatement]

Back 31

Under this approach the corut 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
(1) Connecting Facts
(2) Certain Policy Principles

**Discuss the connecting facts.

**Discuss the policy principles

**State what state "wins" and the result

Front 32

Governmental Interest Approach

Back 32

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 no legitimate interest, this is a false conflict case and it will apply the law of another state.

**Discuss whether the forum has a legitimate interest in the outcome of the litigation. (If not, discuss the interests of other states)

**State which state 'wins' and the result.

**Note: Legitimate not greatest is used in describing interest. The practical effect of this for the bar exam is that you will almost always apply forum law.


**Not important to determine substantive law area

Front 33

Creating a facts ledger

Back 33

(1) Put in the forum

(2) Put in the differing laws and the differing results

(3) Put in the facts

Front 34

Federal Courts/Diversity Cases

Back 34

If the forum is a FEDERAL district court sitting in diversity jurisdiction, the court will apply the conflicts rules of the state in which it is sitting

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

Front 35

Choice of Law Substantive Area: Torts

[Vested Rights Approach: Vesting Rights]

Back 35

Place of Injury

Front 36

Choice of Law Substantive Area: Torts

[Most Significant Relationship Approach: Most Significant Facts]

Back 36

(1) Place of injury

(2) Place of conduct causing injury

(3) Place of the "home" state

(4) Place where the relationship, if any, between the parties is centered.

Front 37

Intrafamily Tort Immunity

Back 37

(second restatement)

The most significant fact in an intrafamily tort immunity case is the place of common domicile

Front 38

Multiple State Torts

Back 38

(ex. defamation)

The tort occurs in more than one state.

Since the injury was probably greatest in P's domicile, most states will apply that law.

Front 39

Choice of Law Substantive Area: Worker's Comp

"Double Recovery" Questions

Back 39

**No choice of law problems since this is an admin case--always apply own worker's comp statutes.

(1) Can the worker recover under more than one worker's comp act?
**YES, but prior recoveries will be credited against subsequent ones.


(2) Can the worker recover under the worker's compensation act and in common law tort proceeding?
**YES, if the D has not been given immunity under the act (like as an employer)

Front 40

Choice of Law Substantive Area: Contracts

Back 40

Determine if there is a valid express choice of law provision.

IF SO, it governs (and the court never gets to its choice of law approaches).

**Make sure it's VALID.

Front 41

Choice of Law Substantive Area: Contracts

Reasons to Invalidate Provision

Back 41

(1) Law selected is that of the state having no reasonable relationship with the contract.

(2) No true mutual assent (ex lying)

Front 42

Choice of Law Substantive Area: Contracts

[Vested Rights Approach: Vesting Rules]

Back 42

(1) Contract Formation Problems: Place of Execution

(2) Contract Performance Problems: Place of Performance

Front 43

Choice of Law Substantive Area: Contracts

[Most Significant Relationship Approach: Most Significant Facts]

Back 43

(1) Place of Negotiation
(2) Place of Execution
(3) Place of Performance
(4) Place of 'home state'
(5) Place where the subject matter, if any, is located.

**IF place of negotiation and performance is the same, that state is probably most significantly related.

*Certain types of contracts other facts may be regarded as more "significant"

Front 44

Choice of Law Substantive Area: Contracts

Capacity

Back 44

Under the 1st Restatement, capacity is a formation problem governed by the law of the place of execution.

Under 2nd Restatement it's governed by the law of the domicile of party involved.

Front 45

Choice of Law Substantive Area: Contracts

Assignment of Contract Rights/Delegation of Duties

Back 45

There are two contracts to possible discuss in this situation, the main one and the one seeking to assign rights/delegate duties in it

*Make sure to discuss the one asked.

Front 46

Choice of Law Substantive Area: Property

[Real Property Rule]

Back 46

SITUS

Covers both inter vivos transactions and inheritance matters.

Front 47

Choice of Law Substantive Area: Property

[Personal Property Rule: Inter Vivos Transactions]

Back 47

SITUS at the TIME of RELEVANT transaction

Front 48

Choice of Law Substantive Area: Property

[Personal Property: Inheritance Matters]

Back 48

Domicile of decedent at date of death.

**IF an intangible property interest is incorporated in a document, the situs is where the document is.

Front 49

Choice of Law Substantive Area: Family Law

Marriage

Back 49

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

EXCEPTION: Where domicilliaries 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

**Prohibitory rule=strong public policy

Front 50

Choice of Law Substantive Area: Family Law

Premarital Contracts

Back 50

The choice of law rules are basically the same as for other contracts

[the law of the state with the most significant relationship to the parties and the transaction or the law of the state where the agreement was executed will be applied]

Front 51

Choice of Law Substantive Area: Family Law

Divorce

Back 51

NO choice of law issues!

Forum always applies its own divorce laws. Since at least one of the spouses is domiciled there it has an interest in having its own laws apply.

Front 52

Choice of Law Substantive Area: Family Law

Legitimacy

Back 52

(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: holds it is valid if sufficient under the law of either the father's or child's domicile.

Front 53

Substance/Procedure Dichotomy

Back 53

Forum will use its choice of law approaches to determine which substantive law to apply.

However, if the matter is procedural it will apply its own law.

"In issue is whether the applicable type law is substantive or procedural, for if its is procedural the forum will apply its own law"

Front 54

Statutes of Limitation

Back 54

**Treated as procedural--forum will apply its own statute.

**Modern Trend: SOL are treated as substantive matters subject ot a basic choice of law analysis--apply the SOL of the most significantly related state.

TWO EXCEPTIONS!
-Borrowing Statutes
-Statute Conditions Substantive Right


*****If you get a SOL issue, unless the call of the question line specifically directs you to do otherwise, discuss both substantive and procedural positions.

Front 55

Borrowing Statutes

Back 55

Forums is directed to apply the "shorter" time limit whether it is the forum's or that of the state where the cause of action arose.

**You will get the statute on the exam.

Front 56

Statute Conditions Substantive Right

Back 56

IF you apply another state's statute which creates a substantive right, you shuld apply the entire statute including its otherwise procedural type provisions.