Conflict Of Laws

Front 1

When should you look for conflicts issues?

Back 1

* when the facts include connections to multiple states

* also, they'll usually be combined with family law, federal civ pro, or torts

Front 2

what are the two testing areas for conflicts?

Back 2

1. recognition of judgments
2. choice of law

Front 3

When will a recognition of judgments question arise?

Back 3

1. a judgment has been issued by a court; AND
2. a party is seeking to have that judgment recognized in a different court

Front 4

what do you call the place where the judgment was originally rendered?

Back 4

the rendering jurisdiction: the state handing down the judgment

Front 5

What do you call the place where recognition of a judgment is being sought?

Back 5

the recognizing jurisdiction: the state called upon to recognize and enforce the judgment.

Front 6

Why would a plaintiff seek recognition of an existing judgment?

Back 6

In order to access enforcement mechanisms in the rendering state

Front 7

Why would a defendant seek recognition of an existing judgment?

Back 7

To prevent a plaintiff from relitigating a claim or issue

Front 8

What is the basic analysis for a recognition question?

Back 8

Is the rendering jurisdiction a sister state or foreign country?

Sister state:

1. Are the rendering State's requirements of full faith and credit satisfied?

2. Are there any valid defences?

Foreign country: ask if the foreign judgment is entitled to comity?

Front 9

What is the source of obligation to recognize a judgment in a sister state?

Back 9

The Constitution - Article 4

Front 10

To what do full faith and credit principles apply?

Back 10

* federal courts and state courts

* state courts and state courts

Front 11

What are the three general requirements for full faith and credit?

Back 11

1. The rendering state must have had jurisdiction over the parties and the subject matter

2. The judgment must have been on the merits (including default judgments and consent)

3. The judgment must have been a final judgment. If modifiable, it is not final. Not final while on appeal, or future alimony or child support unless already accrued.

Evaluated using the law of the rendering state.

Front 12

What is the exception to jurisdiction requirement?

Back 12

When the issue of jurisdiction has been fully and fairly litigated, then the

jurisdictional determination is itself entitled to full faith and credit

Front 13

What are examples of judgments not on the merits?

Back 13

* lack of jurisdiction

* misjoinder
* improper venue
* failure to state a claim or demures
* statute of limitations / time bars

Front 14

what are examples of judgments considered on the merits?

Back 14

* consent judgments entered after settlement

* default judgments

Front 15

are judgments on appeal in the rendering jurisdiction considered final?

Back 15

* NOPE

* modifiable decrees are not final (except as to past payments)

Front 16

what are valid defenses to full faith and credit?

Back 16

* Penal judgments (punishes offences against the public; when the plaintiff is the state)

* Extrinsic fraud (fraud that could not be corrected during the regular course of proceedings leading to the judgment; bribed judge)

Front 17

What are examples of invalid defenses to full faith and credit?

Back 17

* public policy: judgement is contrary to the recognizing state's public policy

* mistakes: The wrong procedural route has been selected. It should have been challenged through an appeal in the rendering state.

Front 18

What is the source of an obligation to recognize foreign judgments?

Back 18

Comity or treaty

Front 19

What is the rule for recognizing foreign judgments?

Back 19

Under principles of comity, a recognizing court will exercise discretion to decide whether the foreign judgment should be recognized:

The court will consider many of the same principles as full faith and credit, but it will also ask:

1. Did the foreign court have jurisdiction? (despite litigation of this issue in the foreign court)

2. Were the procedures in the foreign court fair? (does it meet the recognizing state's idea of due process - was there enough contacts with litigation or the parties to make jurisdiction fair).

Front 20

When will a choice of law question arise?

Back 20

1. The lawsuit involves factual connections with multiple states

2. The multiple states have different laws leading to different results.

Front 21

In general, which state's law will govern?

Back 21

The governing law is the law selected by the forum court according to its own choice of law Approach (assuming no applicable constitutional or statutory restrictions)

Except:

1. A federal court sitting in diversity applies the choice of law approach of the state in which it sits
2. When a diversity case is transferred within the federal court system, the federal court applies the choice of law approach of the transferor court.

Front 22

What are the Constitutional restrictions on using law of the forum court?

Back 22

Due process and full faith and credit: the constitution imposes a limit only if a state's law is chosen that has no significant contact with and/or legitimate interest in the litigation.

Front 23

What are the statutory restrictions on using the law of the forum court?

Back 23

If the forum state has a statute that directs a choice of law, then the forum court should apply that statute instead of the usual choice of law approach,

e.g. a borrowing statutes of limitation, federal patent law

Front 24

What should the first paragraph of a choice of law answer say?

Back 24

"the issue presented is which state's law will govern the outcome of this litigation. The governing law will be selected by the forum court using the [fill in applicable choice of law approach - stated in facts].

Front 25

What are the three approaches to resolving a choice of law problem?

Back 25

1. Vested rights Approach (first restatement)

2. Interest analysis

3. Most significant relationship (second restatement)

Front 26

What is the "Vested Rights" Approach to a Choice of Law analysis?

Back 26

Under this approach, the court will apply the law of the state mandated by the applicable vesting rule.

The rule is selected according to the relevant substantive area of law: a set of facts based rules that determine which state's laws will govern - where the facts occur determines which state's law will govern.

Front 27

What is the analysis to follow in using the Vested Rights approach to determine choice of law?

Back 27

1. Categorize the substantive area of law
2. State the applicable vesting rule
3. Apply the vesting rule to determine governing law
4. Apply the governing law to determine the result.

Front 28

What are three examples of areas of law where and how the vesting rule applies?

Back 28

Torts: the instance a cause of action arises, plaintiff's rights are vested - law of the place injury occured.

Contracts: rights under a contract vest when contract is made. Apply law of the place where the contract was formed.

Real Property: Apply law of situs of land

Front 29

What is the Interest Analysis Approach to determine a choice of law analysis?

Back 29

Interest Analysis considers which states have a legitimate interest in the outcome of the litigation.

The forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of another interested state.

Front 30

What are the steps to engage in an Interest Analysis?

Back 30

1. Identify the factual contacts with each state.

2. Identify the different state laws in issue

3. Identify the policies underlying each state's law: Which state's laws favour which parties?

4. Apply facts to law and policy to determine which states have an interest: If the party favoured by the forum State's policies resides in the state

5. Apply the law of the state with the greatest government interest

Front 31

What is a false conflict?

Back 31

When only one state has a legitimate interest in the outcome of a claim.

Apply the law of the only state with the legitimate interest in the outcome.

Front 32

What is a true conflict?

Back 32

When two (or more) states have a legitimate interest in the outcome of a claim.

Assume that the law of the forum state will apply, (does not have to be the BEST) unless another state has a much greater interest.

Front 33

which law do you apply in a false conflict case?

Back 33

the law of the interested state

Front 34

what law do you apply in a true conflict case?

Back 34

if the forum is interested, apply forum law

Front 35

What is the "Most Significant Relationship" Test?

Back 35

A Court will apply the law of the state which is most significantly related to the outcome of the litigation.

To determine this, the court will consider the connecting facts (where) and policy principles (why).

Front 36

What is the analysis for applying the Most Significant Relationship Test?

Back 36

1. Identify and consider the connecting facts
2. Identify and consider the policy principles
3. Choose governing law based on the most significant relationship (whatever you want)
4. Apply the governing law to determine the result

Front 37

First restatement vesting rule: Torts

Back 37

governing law is the law where the injury occured

Front 38

Second restatement considerations: torts - factual connections

Back 38

* place of injury
* place of conduct causing injury
* place where the parties are at home
* place where the relationship, if any, is centered

Front 39

second restatement considerations: torts - policy principles

Back 39

* relevant policies of the forum
* relevant policies of other connected states

Front 40

What could lead to exceptions to applying the law of the place of injury?

Back 40

Conditions

1. The rule at issue is a loss distribution rule (as opposed to laws regulating conduct - apply law of place of in jury) - such as loss limitation (damage caps), vicarious liability rules, elimination of liability rules

2. The parties in the case share a common domicile.

3. If the jurisdiction of one party has a greater interest than the place of injury, when both parties are domiciled in different jurisdictions.

Front 41

Will a choice of law provision in a contract be enforced?

Back 41

* Yes, if it is valid and express

* if so, the provision displaces the choice of law analysis the court would otherwise perform

Front 42

What are the limitations on the validity of a choice of law clause in a contract?

Back 42

Parties can choose any law, for the law of the contract. The parties can choose the law that determines contract validity, provided that:

1. There must be a substantial relationship to the parties or the transaction. If the forum law selected has no reasonable relationship to the contract, may be invalid.

2. The provision was included without true, mutual assent (one party materially misrepresented the law of the other state) or under duress.

Front 43

How do you determine the law that would apply to a contract under the vesting rules approach

Back 43

1. If the case is about formation (capacity, formalities, sufficiency of consideration), apply the law of the place of execution

2. If the case is about performance (time place, and manner of performance; excuse for non performance), apply the law of the place of performance.

Front 44

How do you determine what law applies to a contract based on the most significant relationship analysis.

Back 44

Look to the factual connections:

* place of contracting
* place of negotiation
* place of performance
* place where the parties are at home

AND policy considerations:

* relevant policies of the state

* relevant policies of other connected states

* reasonable expectations of the parties

Front 45

What law applies in property cases?

Back 45

*Immovable property: apply the law of the situs

*personal property

1. Inter vivos: the law of the situs at the time of transaction

2. Inheritance: law of the decedent's domicile at the date of death.

Front 46

Where will marriages be recognized?

Back 46

* if a marriage is valid where performed, it will be recognized everywhere

Except: where domiciliaries of one state temporarily relocate to another state to perform a marriage that violates a prohibitory rule in their homestate, the state of domicile will not recognize the marriage.

Front 47

What is a prohibitory rule?

Back 47

A rule that express as strong public policy regarding marriage (as opposed to directory rules, which are administrative in nature)

Front 48

What law applies in divorce?

Back 48

* the forum will apply its own divorce laws

* this is because to acquire jurisdiction, at least one of the parties must be domiciled in the state; therefore, the state has an interest in applying its own law

Front 49

What law applies in legitimacy cases?

Back 49

* Legitimacy of a child is governed by the law of the mother's domicile at the time of the child's birth
* the validity of subsequent acts of legitimation are governed by the law of the father's domicile

Front 50

What are the defences to choice of law?

Back 50

* public policy - a forum court will not apply a law that is against its own fundamental pulic policy (mostly used for first restatement)

* procedural rules - regardless of the outcome of the choice of law analysis, the forum court will apply its own procedural rules

Front 51

are statute of limitations procedural or substantive rules?

Back 51

Statutes of Limitation are usually considered procedural rules.

Except for borrowing statutes and limitations that condition a substantive right

Front 52

borrowing statutes

Back 52

direct a court to look at both the forum limitations period and the foreign limitations period (in cases where foreign law governs under a choice of law analysis) and then to apply the shorter period

Front 53

limitations that condition a substantive right

Back 53

if the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, then apply the entire statute, including the limitations.

Look for wrongful death fact pattern

Front 54

how does a person establish domicile?

Back 54

an individual with domicile capacity acquires a domicile when two concurrent conditions are satisfied:

1. physical presence in the state
2. intent to remain indefinitely

Front 55

how is domicile for children established?

Back 55

* newborns are assigned the domicile of their parents
* in case of divorce, children are assigned the domicile of their custodial parent

Front 56

how is domicile for mental incompetents established?

Back 56

* they get the domicile of their parents
* but if an individual becomes incompetent after acquiring a domicile, she retains the chosen domicile.

Front 57

What law is used to determine the intestacy laws of someone that dies intestate?

Back 57

the domicile of the person at the time of their death. NOT where they die.

Front 58

How do you determine where someone is domiciled when there is a conflict between their actions and words, with respect to where they are domiciled?

Back 58

Where a person's actions indicate their intent to reside in a location permanently, but their words say otherwise, this gives rise to both jurisdictions being permitted to determine/claim domicile.