Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

61 Cards in this Set

  • Front
  • Back
What is the first question to ask yourself in Conflict of Laws situations?
Does the court where the plaintiff seeks to bring the action have proper jurisdiction?

- under the rules of civil procedure
What 3 questions should be asked to determine if there is any problem relating to Full Faith and Credit Clause?
1) Have the Full Faith and Credit Requirements been met?

2) Are there any defenses to Full Faith and Credit?

3) What are the effects of recognizing a sister state judgment?
What are the 3 requirements of the Full Faith and Credit Clause?
1) Jurisdiction was proper

2) Judgment on the merits (not procedural)

3) Judgment is final
Is a judgment sustaining a general demurrer for failure to state a cause of action deemed to be on the merits?
No, if the party can amend his pleading to state a cause of action
Are default judgments and consent judgments deemed to be "on the merits"?
Yes, they give rise to merger and to bar, and are therefore deemed to be on the merits.

However, default and consent judgments do not give rise to collateral estoppel because the issues are not actually litigated
What makes a judgment final?
The court is not required to take anymore action to resolve the litigaton.

Example: a modifiable divorce decree will not be entitled to Full Faith and Credit as to any future installments or for any past due installments subject to retroactive modification
Which state's law is used to determine whether a judgment has met the 3 requirements for Full Faith and Credit?
The state where the judgment was rendered
What are the 3 valid defenses to Full Faith and Credit?
- Penal judgment

- Existence of Equitable Defenses Against Judgment in Rendering State

- Inconsistent Judgments
Describe Penal Judgment
- They do not have to be enforced
- Must be a punishment for an offense against the public
- The USSC has ruled that a foreign judgment for taxes is not penal and IS entitled to Full Faith and Credit
Describe the Existence of Equitable Defenses Against Judgment in Rendering State
- If enforcement of the judgment is subject to equitable defenses, these defenses will be recognized in the 2nd state as well
- Most common of the defenses is fraud
- The only type of fraud that is sufficient here is extrinsic fraud (ex: a misrepresentation by one party or his attorney that causes the other party or attornye not to present the case fully or comply with procedural requirements
How do courts traditionally deal with Inconsistent Judgments
- by recognizing the last judgment in time
- must be the same parties and the same cause of action, etc...
What is the result if the judgment of one state is against the public policy of the 2nd state?
The USSC has held that there is no public policy exception to Full Faith and Credit
- The fact that the action could not have been brought in the recognizing state's courts (because it is against the state's public policy) will not be sufficient to deny the judgment Full Faith and Credit
What 2 questions should be asked to determine the effect of recogniztion of a sister state judgment?
1) What are the res judicata effects?

2) Who will be bound by the former judgment?
What are the 2 catagories of Res Judicata effects?
1) Merger & Bar

2) Collateral Estoppel
What is Merger?
When a final judgment is rendered, the plaintiff's cause of action merges into the judgment
Therefore, the plaintiff may not maintain anither suit on the same cause of action
What is Bar?
When a final judgment is rendered in favor of the defendant, the plaintiff will be barred from suing the defendant for the same cause of action
What is the test for the "same cause of action"?
- Is it claimed that the same right has been infringed by the same wrong in both proceedings?

- Are the supporting facts in both cases the same?

- Are the same legal principles applicable to both proceedings?
When does Collateral Estoppel apply?
If the cause of action is different in the second proceeding, but an issue resolved in the first lititgation is again raised in the second suit.
Resolution of the fact in the first suit will be binding on the parties in the second suit
What 2 requirements must be met for collateral estoppel to operate?
1) The issue of fact must have been actually litigated in the prior proceeding


2) It must have been essential to the first judgment
Can a stranger to the first action rely on collateral estoppel?
The traditional rule (the Rule of Mutuality) is that they cannot. However, some courts will look at the facts on a case by case basis.
Who can be bound by a prior judgment?
Parties and their privies
Who are privies?
people whose interests have been represented by a party to the action:
- beneficiaries
- holders of future interests
- successors in interest
- persons who have been represented in a class action
What are the Uniform Enforcement of Foreign Judgment Acts?
They are in force in every state.
- a judgment creditor can file a properly authenticated judgment from the rendering state with the district court clerk of the recognizing state
- once filed, the judgment has the same effect and is subject to the same procedures and defenses as if it had originally been rendered in that state
Which state's law governs the method of enforcement?
The laws of the recognizing state
- Full Faith and Credit does not require the recognizing state to adopt the time, manner or mechanisms of the rendering state
Is Full Faith and Credit afforded to federal court judgments?
No, only to sister state judgments
(there are currently plans to implement Full Faith and Credit to federal judgments in the future)
How is enforcement handled if the judgment was rendered by a federal court?
It is substantially expedited.
It is registered in the 2nd state district court and enforced if it had been rendered there
Does Full Faith and Credit apply to judgments by administrative tribunals?
What is the comity principle?
That judgments of foreign countries are voluntarily recognized by American courts.
- The recognizing court has discretion
What will an American court consider in order to decide to give a foreign judgment comity?
- Whether the rendering court had jurisdiction

- Whether fair procedures were used to adjudicate the case
What does the Uniform Foreign Money-Judgments Recognition Act encompass?
Any foreign judgment granting or denying a sum of money other than a judgment for taxes, penal judgments or alimony/child support
What is an ex parte divorce?
Based on the domicile of only one party; The enforcing court may delve into the issue of whether full faith and credit may be given; However, there is a rebuttable presumption as to the domicile of the plaintiff (party attacking this presumption has the burden of proof and is able to use facts from after the divorce)
If a court having jurisdiction over parties decides that the ex parte divorce was improperly granted, how are the parties classified?
They are treated as still married and any subsequent marriage would be bigamous
Is the fact that a court has personal jurisdiction over both spouses be a sufficient jurisdictional basis to satisfy full faith and credit?
No, jursidiction must also exist as to subject matter (the marriage)
If both parties are before the court and one spouse is domiciled in that state, is this a unilateral or bilateral divorce?
Who may be estopped from collateral attack of another state's divorce decree?
- Party of the prior proceedings

- Privies of parties of the prior proceedings

- Strangers

- A party that remarried in reliance on that divorce
Are valid bilateral divorces entitled to Full Faith and Credit?
Yes, they are generally conclusive as to alimony/property rights, etc...
What is the jurisdictional exception to ex parte divorces and the adjudication of property rights?
In Rem or Quasi In Rem:
Even if a court does not have jurisdiction over the defendant in an ex parte divorce, the court may adjudicate both parties' rights to marital property located within the forum state, if that sttae has sufficient "minimum contacts" with the defendant and the property.

The location of the property within the forum state is itself generally a sufficient basis for the exercise of in rem or quasi in rem jurisdiction.
What is the Act that governs recogniztion of child custody orders?
UCCJEA ensures that the child's home state makes the determination of custody and that it is afforded full faith and credit. Further, no other court can modify that order unless the rendering court no longer has a remaining significant connection with the child or any parties of the dispute
What is the one requirement that is most important to comity of foreign divorces?

As for all other aspects of the divorce (such as alimony, etc) the rules are the same as for sister states
Must a state divorce decree give way to a clearly conflicting enactment of a federal statute that imposes different rights and duties?
Yes, because of the Supremecy Clause
In what way is domicile important for jurisdiction under common law?
It gives the court personal jurisdiction
In what ways is domicile important for choice of law issues under common law?
- validity of wills

- acession to personal property

- validity of marriage

- questions relating to legitimacy

- divorce (domicile in the area of divorce law s governed by statute instead of common law)
What are the 3 most important facts in determining the domicile of a person who has more than one residence in WV?
- the physical character of each place

- the time spent and things done in each place

- whether there is an intention to return to the original domicile
Generally, a person with legal capacity has choice of domicile. How will the court dtermine if a choice has been made?
If there is a physical presense (amount of time is decided in each case)
there is an intention to tbe domiciled there (makes a home there for the time being, the courts will not examine the underlying motive)
When a person leaves the state of domicile, how long does domicile last in the old state?
Until a new domicile is established; in other words, finding a new home
How is the domicile of a person with legal incapacity determined?
A child's domicile follow that of the custodial parent.

An incompetent will maintain the domicile of his parents. If a person had capacity and then later becomes incompetent, he will retain the domicile of his choice. An incompetent willl not change domicile simply by becoming institutionalized in a new state, because of the missing intent to change domicile.

Note: married women are not legally incapacitated and may choose domicile.
Where is the domicile of a corporation?
Always in the state where it was incorporated
What are the 2 kinds of limitations on the court's power to apply given law?
1) Constitutional limitations

2) Statutory limitations
What are the 2 current Constitutional limitations on the choice of law?
Due Process
Full Faith and Credit Clause
How does the Due Process Clause limit the choice of law?
A forum state may apply its own law if it has "a significant contact or significant aggregation of contacts, creating state interests, such that a choice of its law is neither arbitrary or fundamentally unfair". Therefore, a forum state may apply its own law if it has sufficiently significant and subsatntial contact with the parties and transaction in question.
How does the Full Faith and Credit Clause limit the choice of law?
It also applies to "public acts" of sister states, which include both statutes and common law. Therefore, states must give Full Faith and Credit not only to judgments of sister states, but to the substantive law as well.
Which law is proper in Workers' Comp decisions?
the forum state may apply its own or another state's law to grant relief as long as the law chosen is supported by substantial factual contacts within the case.
****Wrongful death, Hughes case****
add later, p. 10 of outline
What is the conclusion that should be reached in a case where either Full Faith and Credit or Due Process is involved?
If the forum state has significant contacts with the parties or subject matter of the action whereby it has legitimate interest in regulating the outcome of 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 of 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 Full Faith and Credit Clause.
However, if a state has no contact with the parties or subject matter of the action, it may still refuse to apply a foreign state's law without violating the Constitution in certain cases, such as penal laws, tax claims, etc...
What is the next analytical step, once it has been determined that neither Constitutional provision nor a statutory directive control the coice of law?
The analysis will focus on the approach used by the forum trying the case.
What are the 3 most important approaches to be anaylzed when using the forum state's approach to choice of law on the bar exam?
- "Vested Rights" Approach of the 1st Restatement

- "Most Significant Relationship" Approach of the 2nd Restatement

- "Governmental Interests" approach
What are the 2 lesser important standards of choice of law?
- "Lex Fori"

- "Better Rule"
What is the "Vested Rights" Approach of the 1st Restatement?
1) Characterize the area of law

2) Determine the particular choice of law rule

3) Localize the rule to be applied
What is meant by the saying "The last act is often the key"?
In most instances, rights vest in the state where the last act or event occurs that gives rise to the rights asserted.

Ex: in a tort case, it is often where the injury occured
What are the policies underlying the "Vested Rights" approach?
- relatively easy to apply

- it improves predictability of outcome

- discourages from forum shopping

- all parties have their rights adjudicated from the same law
What are the 2 elements must be considered in the "Most Significant Relationship Approach" of the 2nd Restatement?
1) concerning facts in a given case

2) certain policy-oriented principles