Choice of Law Flashcards
(32 cards)
What is the first step in a choice of law question?
Characterize the issue according to the area of substantive law
What is renvoi?
The possibility that, in applying another state’s law, a court might find that the other state’s choice-of-law rules require the court to apply the law of the forum state
What should a court do when it runs into a renvoi issue?
Apply the choice-of-law rules of the forum state
When will a court accept the renvoi?
(1) Cases concerning the validity of marriage
(2) Cases concerning interests in land
What is depecage?
The idea that a court may apply the laws of different states to different issues in the same case
What are the three choice of law theories?
(1) Vested Rights approach
(2) Interest analysis approach
(3) Substantial relationship approach
What is the vested rights approach?
Directs the court to apply the law of the place where a particular event occurred
What are the three categories of Interest-Analysis?
(1) True conflict
(2) False Conflict
(3) Unprovided-for cases
What is a true conflict and whose law will the court apply?
When more than one state has an interest in applying its law to the dispute. The court will usually apply the forum’s law as a tiebreaker
What is a false conflict and whose law will the court apply?
When one state has an interest in applying its law but another state does not. The court will usually apply the law of the state with the interest
What is an unprovided-for case?
A case in which no state has an interest in applying its law to the dispute. Court will usually apply the law of the forum state
What is the Substantial Relationship approach?
Directs courts to apply the law of the place with the most substantial relationship to the parties and events giving rise to the lawsuit
What factors will courts apply in determining who has the most substantial relationship to a lawsuit?
(1) Where the conduct occurred
(2) Domicile of each party
(3) Where the relationship between the parties is centered
Are choice of law clauses enforceable?
Generally, yes
When are choices of law clauses not enforceable?
Either:
(1) The chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice
(2) Applying the clause would be contrary to a fundamental policy police of the state with the most substantial relationship to the issue and has a materially greater interest in determining the issue
What is the general rule as to whose law will be applied in cases involving real property?
The state where the real property is located
What is the general rule as to whose law will be applied in cases involving corporate issues (internal issues)?
State where the incorporation is incorporated
What law will be applied in a divorce and adoption proceeding?
State of filing (forum state)
What law will be applied to determine whether a marriage was proper?
State of celebration (unless there is a serious violation of public policy)
What type of law will be determined by choice of law?
Substantive only
What are the three “defenses” to the application of another state’s law?
(1) Local public policy
(2) Penal laws
(3) Revenue laws
When is another state’s law contrary to the forum state’s strong public policy?
When it is offensive, immoral, or unjust
What three constitutional provisions affect a court’s choice-of-law analysis?
(1) 14th Amendment
(2) Full faith and credit clause
(3) Privileges and immunities clause
When will applying the forum’s state law violate due process?
(1) Forum lacks any connection to the dispute
(2) Either:
(a) Forum law application would frustrate parties’ reasonable expectations; or
(b) Forum law application would cause unfair surprise
