Conflict of Law (Essay Only)

Question 1

domicile / individuals

domicile for people - ways to acquire

Answer 1

• can only have one domicile at a time
• domicile by choice
• domicile by operation of law

Question 2

domicile / individuals

how to acquire domicile by choice

Answer 2

1. physical presence in the chosen domicile
2. have an intent to remain for indefinite time

“your mind + your behind”

Question 3

domicile / individuals

how to acquire domicile by operation of law

Answer 3

• people who don’t have legal capacity to choose a domicile
• children - domicile of parents, custodial parent if parents are in different states , emancipated minor can choose
• incompetent - retains parents’ domicile

Question 4

domicile / corporations

where is the domicile for a corporation

Answer 4

ALWAYS state of incorporation

Question 5

domicile

continuity of domicile - who has burden to show a change in domicile?

Answer 5

party asserting the change

Question 6

choice of law / general + terms

state in which the lawsuit is brought (term)

Answer 6

forum state

Question 7

choice of law / general + terms

law of another jurisdiction (term)

Answer 7

foreign

Question 8

choice of law vs. jurisdiction

Answer 8

• choice of law is about the law to be applied
• jurisdiction is whether the court can decide a case

Question 9

choice of law / limits

constitutional limits

Answer 9

1. Due Process Clause (14th) - forum state may apply to its own law to a particular case only if it has significant contact or aggregation of contacts so that it’s neither arbitrary nor fundamentally unfair
2. Full Faith and Credit - forum state to apply law of another state when forum state has no contacts or interest in the controversy

see tip card with the key phrase to include

Question 10

tip

key phrase for constitutional limitations

Answer 10

state may apply its own substantive law to an issue
ONLY IF state has a significant contact or aggregation of contacts with the issue
such that application of its own law is neither arbitrary nor fundamentally unfair

Question 11

choice of law / contract clause

courts will enforce a contractual choice of law provision IF (give the test)

Answer 11

1. valid agreement with effective choice of law clause
2. applicable to the lawsuit under terms of contract
3. reasonably related to the lawsuit AND
4. not in violation of pbpl of forum state or another interested state

choice of law provisions are generally enforceable

Question 12

choice of law / approaches

list the approaches

Answer 12

1. traditional approach / vested rights approach / 1st Restatement
2. governmental interest analysis
3. most significant relationship / 2nd Restatement

Question 13

choice of law / approaches

traditional / vested rights approach (R1st)

Answer 13

law that controls is the law of the jurisdiction where the parties’ rights were vested
(act or relationship that gave rise to the cause of action occurred or was created)
when the last act that takes place that is necessary to give P a cause of action
court only needs to determine where legal right vested + apply law of that place

Question 14

choice of law / approaches

governmental interest approach

Answer 14

presumed that forum state will apply its own law, but another state may have a greater interest

1. distinguish b/t conduct regulating and loss shifting laws
   state has interest in applying conduct-regulating law when wrongful conduct occurs w/in its territory or domiciliary is injury
   state has interest in applying loss-shifting law when it would benefit a state domiciliary
2. determine which states are interested
   if only one state is truly interested –> false conflict –> apply law of only interested state
   if multiple states interested –> true conflict –> forum state reviews its own policies to determine which law should apply, forum state if can’t resolve
   if neither is interested –> apply law of forum state

conduct-regulating laws - designed to regulate conduct, label conduct as wrongful
loss-shifting laws - determine who can/can’t be liable

Question 15

choice of law / approaches

most significant relationship analysis (R2d)

Answer 15

apply law of state with most significant relationship to issue in question
7 guiding principles (key ones below) to determine which state has the most significant relationship

1. promote relevant policies of the forum and other interested states
2. protect systemic interests like certainty, uniformity, predictability, and simplicity
3. protect justified expectations of the parties for planned transactions

additional factors for certain areas of law (torts, contracts, etc.)

Question 16

tip

how to start an answer using the most significant relationship analysis (R2d)

Answer 16

The court must determine which state has the most significant relationship to the issue in question.
In making this determination, the court should strive to promote the relevant policies of the forum and other interested states; advance systemic interests like certainty, uniformity, predictability, and simplicity; and protect justified expectations of the parties.

Question 17

choice of law / approaches

dépeçage

Answer 17

application of different states’ laws to different issues within the same case

Question 18

choice of law / approaches

renvoi

Answer 18

requires a forum court applying another state’s law to apply the whole law of that state, including choice of law rules
generally rejected

EXCEPT

• Federal Tort Claims Act - apply whole law of place where act/omission occurred
• property rights in land - use other state’s choice of law rules

Question 19

choice of law / approaches / torts

vested rights approach

Answer 19

law of the place where the tort occurred
last event necessary to create a tort

Question 20

choice of law / approaches / torts

government interest analysis approach

Answer 20

no changes in how to apply

Question 21

choice of law / approaches / torts

most significant relationship approach

Answer 21

additional contacts

• place where injury occurred
• place where conduct causing the injury took place
• domicile, residence, place of business of parties
• place where relationship is centered

presumed that law of place of injury will be applied

Question 22

choice of law / approaches / contracts

contract validity

Answer 22

parties can choose the law that applies to contract validity (different from contract interpretation) IF
* chosen state has substantial relationship to parties or transaction OR
* there is some reasonable basis for the choice

choice will be ignored if application would be contrary to a fundamental policy of the state

Question 23

choice of law / approaches / contracts

vested rights / traditional approach

Answer 23

• place of execution will govern contract formation, interpretation, and validity
• place of performance (last act necessary to create the contractual right - generally acceptance) will govern time and manner of performance, person obligated to perform, sufficiency of performance, etc.

Question 24

choice of law / approaches / contracts

most significant relationship approach

Answer 24

presumption: if location of negotiation and performance are same, then apply those laws

additional policy factors
* place of contracting, negotiation, and performance
* place where subject matter of contract is located
* location of parties’ domicile, residences, places of incorporation, places of business

Question 25

# choice of law / approaches / property default rule for immovable property contracts (land)

Answer 25

law of the state of situs (where property is located) want justified expectation of the parties whole law of the state

Question 26

# choice of law / approaches / property default rule for tangible personal property

Answer 26

law of state where it is physically located UNLESS UCC or governmental interest approach applies

Question 27

# choice of law / approaches / property default rule for intangible personal property

Answer 27

law of state in which intangible property was created UNLESS UCC or governmental interest approach applies

Question 28

# choice of law / approaches / property distribution of immovable property at death under R1st and R2d (real property)

Answer 28

law of situs

Question 29

# choice of law / approaches / property distribution of moveable property at death under R1st and R2d (personal property)

Answer 29

law of decedent's domicile at time of death

Question 30

# choice of law / approaches / property validity of will

Answer 30

under UPC, validity is determined under law of place where * will was executed OR * testator is domiciled, has a place of abode, or is national at time of death

Question 31

# choice of law / approaches / corporations default rule for internal affairs

Answer 31

state of incorporation

Question 32

# choice of law / approaches / corporations default rule for external affairs

Answer 32

corporation is treated like natural person so apply the 3 tests

Question 33

# choice of law / approaches / family law marriage validity - traditional vested rights approach

Answer 33

validity is governed by law of place where marriage took place EXCEPT if marriage violates a particularly strong pbpl of domicile of either party, then court may refuse to recognize the marriage

Question 34

# choice of law / approaches / family law incidents of marriage - traditional vested rights approach

Answer 34

deterred by law of place where the incidents of marriage are sought to be exercised | incidents of marriage - rights that come from marital status

Question 35

# choice of law / approaches / family law marriage - most significant relationship approach

Answer 35

marriage is valid where it took place and all other states UNLESS it violates pbpl of state with most significant relationship with parties at time of marriage

Question 36

# choice of law / approaches / family law marital property

Answer 36

* immovable property - law of situs * movable property - law of state where couple was domiciled at time of acquisition

Question 37

# choice of law / approaches / family law divorce

Answer 37

controlled by law of plaintiff's domicile

Question 38

# recognition of foreign judgments traditional approach to foreign law in the pleadings

Answer 38

laws of another state or country weren't considered law at all considered facts to be proven in court

Question 39

# recognition of foreign judgments modern approach to foreign law in the pleadings

Answer 39

most states allow courts to take judicial notice of laws of other states federal courts must take judicial notice of laws of all states in US, but require pleading and proof of foreign country's law

Question 40

# defenses against application of foreign law penal law exception

Answer 40

forum state will NOT enforce another state's penal laws

Question 41

# defenses against application of foreign law laws against public policy

Answer 41

if foreign law violates pbpl of forum state, forum may refuse to apply that law R1st and R2d - if that law violates a fundamental and strongly held public policy of the forum state case would be dismissed without prejudice

Question 42

# defenses against application of foreign law procedural laws | not substantive

Answer 42

forum law's procedures always govern

Question 43

substance vs. procedure distinction

Answer 43

substantive laws regulate behavior outside of court procedural laws regulate inside court

Question 44

# recognition of foreign judgments what laws apply if a federal court is exercising federal question jurisdiction

Answer 44

federal law always

Question 45

# recognition of foreign judgments federal court with state judgment

Answer 45

federal courts must give full faith and credit to state court judgments

Question 46

# recognition of foreign judgments state court with federal judgment

Answer 46

if federal court had diversity jurisdiction over an action issues a judgment, then state court must give that judgment the same res judicata effect that judgment would have been given by courts of state where federal court was located

Question 47

# recognition of foreign judgments / Erie Erie doctrine (generally)

Answer 47

federal courts exercising diversity jurisdiction must apply the substantive law of the states in which they sit as the law has been interpreted by the highest state court

Question 48

# recognition of foreign judgments / Erie Erie: how to determine if state statute is substantive

Answer 48

it is substantive if it is **outcome determinative** in a direct and certain enough way that it encourages forum shopping between state and federal court

Question 49

# recognition of foreign judgments / Erie when does procedural law apply

Answer 49

applies only in state court, not federal court

Question 50

# recognition of foreign judgments / Erie what is substantive law

Answer 50

any state law that defines the legal rights and obligations of the parties

Question 51

# recognition of foreign judgments Klaxon Rule

Answer 51

federal district court in diversity case must apply choice of law rules of the state in which it sits (still need to follow Due Process + Full Faith and Credit)

Question 52

# recognition of foreign judgments / family law ex parte divorce

Answer 52

* court has PJ over only one party * party seeking ex party divorce must establish domicile in the forum state (most states have a residency requirement) * entitled to Full Faith and Credit for divorce agreement (but not other marital agreements like property rights, alimony, child custody) even though there was no PJ over absent spouse

Question 53

# recognition of foreign judgments / family law bilateral divorce

Answer 53

if court has PJ over both spouses + one spouse is domicile in the state, then divorce judgment will be valid + entitled to Full Faith and Credit

Question 54

# recognition of foreign judgments / family law child custody

Answer 54

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) court can make initial custody decisions if it is in child's home state and all other states must give Full Faith and Credit to such decisions

Question 55

# recognition of foreign judgments rule for workers' compensation

Answer 55

if employee gets award in State A, they can get a supplemental award in State B UNLESS law of State A bars additional recovery using **unmistakable language**

Question 56

# recognition of foreign judgments judgments from foreign countries

Answer 56

US courts have discretion to decide whether to recognize foreign country judgments **usually enforced as matter of comity** (mutual respect among sovereigns)

Question 57

can a party against whom enforcement of a judgment is sought challenge the original judgment based on SMJ? | Essay 313

Answer 57

yes, if SMJ was not litigated in the original action generally, state courts + federal courts have to honor judgments (Full Faith and Credit)

Question 58

what test do most states use when determining which laws to apply in the determination of the enforceability of a premarital agreement? | Essay 291

Answer 58

apply the law of the state with the most significant relationship to the agreement + subsequent marriage