Conflicts Of Laws

Front 1

In Va, how does a person acquire a domicile of choice?

Back 1

a. Physical presence in that state
b. The intent to remain there for the foreseeable future/indefinitely

Front 2

In Va, what level of capacity does a person need to establish domicile voluntarily?

Back 2

A person must have legal capacity
a. Capacity here means the ability to fend for yourself.
b. This is NOT the same as ordinary legal capacity.

Front 3

In Va, what is the domicile for a child?

Back 3

a. If the child is old enough to fend for himself, he can obtain a domicile of choice.
b. Otherwise, it is assigned by operation of law as the domicile of the parents (or whichever parents has physical custody).

Front 4

What is the constitutional test for choice of law in a conflicts of laws situation?

Back 4

Significant contact giving legitimate interest: the state chosen must have a significant contact or contacts with the parties or the subject matter of the litigation which gives it a legitimate interest in seeing the law of its state applied.
--From the DPC and the FFC clauses
--Usually this is an easy test to meet.

Front 5

If after the event in question someone moves to a new state, and that would be the only contact with that state, would it be constitutional to apply that state’s law?

Back 5

No, that would be unconstitutional.

Front 6

If the only contact a state has with the litigation is that the suit is brought there, is that sufficient reason to apply that state’s law?

Back 6

No, that would be unconstitutional.

Front 7

Generally, what is Virginia's approach to choice of law in a conflict of laws situation?

Back 7

Vested Rights Approach (aka Territorial Approach): The law to be applied is the law of the place where the rights of the plaintiff vested.

Front 8

In a contracts case with a conflicts of law problem, how do you decide which state's law to apply under the vested rights approach?

Back 8

Contract case: rights vest when the K is made

Front 9

In a tort case with a conflicts of law problem, how do you decide which state's law to apply under the vested rights approach?

Back 9

Tort case: apply law of place where injury occurred

Front 10

What is the best strategy to use when applying the Vested Rights Approach to a choice of law question?

Back 10

1) List the different laws in the problem
2) Characterize the issue in question (which area of law applies?)
3) Find the conflicts rule that applies to that area (i.e., if there’s a standard of care, use the tort law standard)
4) Look for defenses to application of the law under this rule

Front 11

In a choice of law problem, what are the exceptions to the general rule than in a tort case, you apply the law of the place where the injury occurred?

Back 11

i) Where there is a rule regulating conduct (i.e., a rule setting out the exact conduct a person must take, e.g., a highway speed limit)
ii) For the tort of defamation, apply the law of the place of publication

Front 12

In a choice of law question, in a contracts case, when is a forum selection clause valid, if the issue is one of contract validity?

Back 12

For matters of validity of a K, the parties can choose the law provided: (1) the choice is not contrary to public policy of the state that would otherwise be chosen, (2) there is a reasonable relationship of the chosen state to the parties or the transaction, (3) the choice was not obtained by unfair means or under duress.

Front 13

In a choice of law question, in a contracts case, when is a forum selection clause valid, if the issue is one of contract construction?

Back 13

For matters of contract construction, the parties can ALWAYS choose whatever law they want

Front 14

In a choice of law question, in a contracts case, what is the choice of law rule if the UCC applies?

Back 14

i) If the UCC applies to the transaction, the case is governed by the law of the forum so long as the forum has a substantial relationship to the transaction

Front 15

In a choice of law question, in a contracts case, what is the rule of validation?

Back 15

In usury cases, the court will apply the law of the state that will uphold the validity of the transaction as long as the state has some relation to the transaction.

Front 16

In a choice of law case, if the UCC doesn't apply, there is no forum selection clause, and the issue is not usury, what law applies?

Back 16

Depends on the questions at issue in the case:
i) For questions of validity, formalities, and contract formation: the law is that of the place of making of the contract (the last place where the last act took place creating the K—usually the place of acceptance)
ii) For questions of performance: choose the law of the place of performance of the K

Front 17

In a choice of law question, if the case involves real property, what are the choice of laws rules?

Back 17

i) For matters regarding land contracts: apply the contracts rules
ii) For matters regarding conveyances: the law of the situs (i.e., location) of the property governs

Front 18

In a choice of law question, if the case involves personal property, what are the choice of laws rules (with exceptions)?

Back 18

General rule: The law of the place where the personal property is located is chosen
--Exceptions
a) If the issue is passing personal property by intestate succession, then the state chosen is the state of the decedent’s domicile at death
b) If the UCC rules of secured transactions apply, the state is that of the debtor’s residence or place of business

Front 19

In a choice of law question, if the case involves family law, what are the choice of laws rules?

Back 19

For validity of a marriage, choose the law where the marriage was celebrate
--Exception: Va will not apply the law of a state if the marriage is incestuous, polygamous, or otherwise violative of Va law

Front 20

For the purpose of a choice of law issue, is the following a "procedural" law: burden of proof?

Back 20

Yes

Front 21

For the purpose of a choice of law issue, is the following a "procedural" law: statute of limitations? What is the exception?

Back 21

Yes, it's procedural, but it will NOT be used if there is a borrowing statute (a statute that will borrow and apply the shorter statute of limitations of the state where the cause of action arose to avoid forum shopping)

Front 22

In a federal case on diversity, what choice of law rules apply?

Back 22

A federal court sitting in diversity must use that state’s choice of law rules