Choice of Law

Question 1

When a Choice of Law Question Arises

Answer 1

When (1) the lawsuit involves factual connections with multiple states and (2) the multiples states have different laws leading to different results

Question 2

Which State’s Law Governs

Answer 2

The governing law is the law selected by the forum court according to its choice of law approach (assuming no applicable statutory or constitutional restrictions), UNLESS it’s a diversity case in federal court (then that state applies) or a transfer diversity case (then transferor court applies)

Question 3

Restrictions that Sometimes Occasionally Limit the Forum Court’s Choice of Law

Answer 3

Constitutional DPC (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; Statutory (if 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., borrowing statute)

Question 4

Structure of a Choice of Law Answer

Answer 4

(1) Describe choice of law; (2) Describe choice of law approach (vested, interest, most significant relationship); (3) Apply choice of law approach (including governing law and result)

Question 5

Choice of Law Approach 1: Vested Rights (1st Restatement)

Answer 5

Under this approach the court will apply the law of that state mandated by the applicable vesting rule, which is selected according to the relevant substantive area of law

Question 6

Application of Vested Rights Approach

Answer 6

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

Question 7

Choice of Law Approach 2: Interest Analysis

Answer 7

Under this approach, the court will consider 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

Question 8

Application of the Interest Analysis

Answer 8

(1) Discuss which states have legit interests; (2) Characterize whether it’s a false or true conflict; (3) If false conflict, apply the law of the interested state; if true, apply forum law if forum is interested; (4) Apply the governing law to determine the result

Question 9

Choice of Law Approach 3: Most Significant Relationship (2d Restatement)

Answer 9

Under this approach the court will apply the law of the state which is most significantly related to the outcome of the litigation. The court will consider connecting facts and policy principles

Question 10

Application of the Most Significant Relationship Approach

Answer 10

(1) Discuss connecting facts; (2) Discuss policy principles (basically do an interest analysis); (3) Choose the governing law based on the most significant relationship; (4) Apply the law to determine the result

Question 11

Torts: Vesting Approach

Answer 11

Governing law is the law where the injury occurred

Question 12

Torts: Most Significant Relationship Test

Answer 12

Consider place of injury, conduct causing the injury, where the parties are at home, where the relationship is centered, the relevant policies of the forum state and other connected states

Question 13

Torts: Exception to applying law of state where injury occured

Answer 13

If the rule at issue is a loss distribution rule (like a damage cap) or if the parties share a common domicile

Question 14

Contracts: Rule

Answer 14

A choice of law provision will be enforced if it is valid and express (but it’s probably invalid)

Question 15

Contracts: Invalid choice of law provision

Answer 15

(1) law selected has no reasonable relationship to the contract; (2) provision was included without true mutual assent

Question 16

Contracts: Vesting Approach

Answer 16

If case is about formation, apply the law of the palce of execution; If law is about performance, apply the law of the palce of performance

Question 17

Contracts: 2d Restatement Considerations

Answer 17

Place of contracting, place of negotiation, place of performance, place where the parties are at home, relevant policies of the forum state/connected states, reasonable expectations of the parties

Question 18

Property: Immovable Property

Answer 18

Apply the law of the situs (place where property is located)

Question 19

Property: Movable (Personal) Property

Answer 19

If the case involves an inter vivos txn, apply the law of the situs at the time of txn
If the case involves a matter relating to inheritance, apply the law of the decedent’s domicile at the date of death

Question 20

Family Law

Answer 20

If marriage is valid where performed, it will be recognized as valid everywhere UNLESS the domiciliaries of one state temporarily relocated to another state to perform a marraige that violates a prohibitory rule in their home state, it won’t be recognized

Question 21

Divorce

Answer 21

The forum will apply its own divorce laws

Question 22

Legitimacy

Answer 22

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

Question 23

Defenses to Choice of Law

Answer 23

(1) Public policy (forum court will NOT apply a law that is against its own fundamental policy (not w/r/to recognition of judgments tho); (2) Procedural rules (regardless of the outcome of the choice of law analysis the forum court will always apply its own procedural rules, like SOL)

Question 24

Exception to Statute of Limitations Choice of Law

Answer 24

(1) Borrowing statutes – direct a court a court to look at both the forum limitations period and the foreign limitations period and then apply the shorter period; (2) Limitations that condition a Substantive Right – if normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, apply the entire statute

Question 25

Domicile

Answer 25

Physical presence + intent to remain permanently / indefinitely; for parents, newborns and mentally incompetents get domicile of parents (or custodial parents for children of divorces)