Conflict of Laws

Question 1

Two Testing Areas

Answer 1

1. Recognition of Judgments
2. Choice of Law

Question 2

Recognition of Judgments

When do recognition of judgment questions arise?

Answer 2

When, (1) a judgment has been entered by a court in one jx, and (2) a party is seeking to have that judgment recognized by a court in a different jx.

Question 3

Recognition of Judgment

Rendering jx

Answer 3

Where the original judgment was made

Question 4

Recognition of Judgment

Recognizing Jx

Answer 4

Where the recognition is being sought

Question 5

Recognition of Judgment

What is the analysis?

Answer 5

1. Is the rendering jx a sister state or foreign country?

• If a sister state
  1. Are the requirements of full faith and credit satisfied?
  2. Are there any valid defenses?
  **If answer to 1 is yes and answer to 2 is no recognition required. **
• If foreign country
  1. Is the foreign judgment entitled to comity?

Question 6

Recognition of Judgment

Requirements for Full Faith and Credit to be Satisfied

Answer 6

1. The rendering state must have had jx over the parties (SMJ and PJ)
   - EXCEPTION: when the issue of jx has been fully and fairly litigated.
2. The judgement entered by the rendering state must have been on the merits.
3. The judgment entered must be a final judgment.

These three requirements are evaluated using the law of the rendering state.

Question 7

Recognition of Judgment

Examples of Cases not decided on the merits

Answer 7

S.O.L.
Lack of Jx
Misjoinder
Improper Venue; and
Failure to State a Claim

Question 8

Recognition of Judgments

CAUTION: Default Judgments

Answer 8

A Default Judgment treats all factual contentions as admitted and is therefore heard on the merits.

Consent Judgment entered after settlement is also considered “on the merits.”

Question 9

Recognition of Judgments

Are there any valid defenses?

Answer 9

1. A penal judgment is not entitled to full faith and credit. It is one that punishes an offense against the public.
2. A judgment obtained by extrinsic fraud is not entitled to FF&C. Extrinsic fraud is fraud that could not be corrected during the regular course of proccedingsleading to the judgment.

Question 10

Recognition of Judgments

CAUTION: Invalid Defenses

Answer 10

1. Public Policy
2. Mistake

Question 11

Recognition of Judgment

Foreign Judgments

Answer 11

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

Question 12

Recognition of Judgment

What do judges consider when dealing with foreign rulings?

Answer 12

1. Did the foreign court have jx? (discretion applied)
2. Were the procedures in the foreign court fair? (discretion applied)

Question 13

Choice of Law

When do choice of law questions arise?

Answer 13

1. The lawsuit involves factual connections with multiple states, AND
2. The multiple states will have different laws leading to different results.

Question 14

Choice of Law

Which state’s law will govern?

Answer 14

Generally, the governing law is the law selected by the forum court according to its choice of law approach.

Question 15

Choice of Law

Exceptions to the general rule

Answer 15

1. Diversity Cases filed in Federal District Court (choice of law approach of the state where it sits.)
2. Transferred Diversity cases.
   - When filed in proper venue and transferred apply the og courts C.o.L approach
   - When improper, or filed in defiance of a FSC, law of the tranferee court will apply.

Forum Selection clause

Question 16

Choice of Law

Constitutional Restrictions on Forum Court’s Choice

Answer 16

The Constitution imposses a limit only if a state’s law is chosen that has no significant contact with and/or legitimate interest in the litigation.

Question 17

Choice of Law

Statutory Restrictions on Forum Court’s Choice

Answer 17

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

Borrowing Statutes

Question 18

Choice of Law

Vested Rights Approach

First Restatement

Answer 18

1. Under this approach the court will apply the law of that state mandated by the applicable vesting rule. That rule is selected according to the relevant substantive are of law.
2. Categorize the law, state the applicable vesting rule, apply the vesting rule to to determine the governing law, apply that law to determine result

EX. This is a torts case. Therefore, the applicable vesting rule is the place of injury. Here, the injury occurred in Michigan and thus Michigan law applies. Under Michigan law, a non-paying passenger cannot recover against the driver, and so the claim is barred.

Question 19

Choice of Law

Interest Analysis

Answer 19

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 20

Choice of Law

Types of Conflict for an Interest Analysis

Answer 20

1. False - arises when only one state has a legitimate interest
2. True - arises when two or more states have a legitimate interest

Question 21

Choice of Law

Most Significant Relationship Approach

Answer 21

Under this approach the court will apply the law of the state which most significantly related to the outcome of the litigation.
1. Discuss connecting facts
2. Discuss policy principles
3. Choose governing law based on most significant relationship
4. Apply the governing law to determine the result.

Question 22

Substantive Application

Torts First Restatement (Vested Rights)

Answer 22

The governing law is the law where the injury occurred.

Question 23

Substantive Application

Torts Second Restatement (Interest):
Factual Connections

Answer 23

Considerations include:
1. place of injury
2. place of the conduct causing the injury
3. place where the parties are at home
4. place wheter the relationship, if any, is centered

Question 24

Substantive Application

Torts Second Restatement (Interest):
Policy Principles

Answer 24

1. The relevant policies of the forum state.
2. The relevant policies of other connected states

Question 25

# Substantive Application Usual Outcomes and Exceptions

Answer 25

The governing law will almost always be the law of the place of injury. Excpetions usually kick in when: 1. The rule at issue is a loss distribution rule (loss limitation, vicarious liability, and rules eliminating liability) 2. The parties share a common domicile.

Question 26

# Substantive Application Choice of Law Provision

Answer 26

A choice of law provision will be enforced if it is valid and express. ## Footnote If in doubt find the provision invalid.

Question 27

# Substantive Application When is a Choice of Law provision invalid?

Answer 27

1. The law selected has no reasonable relationship to the contract. 2. The provision was included without true mutual consent.

Question 28

# Substantive Application Contracts First Restatement (Vested Rights Approach)

Answer 28

1. If the case is about formation, you apply the law of the place of contracting. Considerations include: (1) capacity, (2) contractual formalities, and (3) consideration. 2. If the case is about performance, you apply the law of the place of performance.

Question 29

# Substantive Application Contracts Second Restatement (Interest Analysis)

Answer 29

Factual Considerations: 1. Place of contracting 2. Place of negotiation 3. Place of Performance 4. Place where parties are at home Policy Principles include: 1. Relevant policies of the forume state, 2. Relevant policies of other connected staes 3. Reasonable expectations of the parties

Question 30

# Substantive Application Real Property

Answer 30

Apply the law of the situs.

Question 31

# Substantive Application Personal Property

Answer 31

1. If the case involves an inter vivos transaction, apply the law of the situs at the time of the transaction 2. If the case involves a matter relating to inheritance, apply the law of the decedent's domicile at the date of death (rule of D's)

Question 32

# Substantive Application Family Law - Marriage

Answer 32

If a marriage is valid where performed, it will be recognized as valid everywhere. EXCEPTION: When domilicaries of one state temporariliy relocate to another state to enter into a marriage that violates a prohibition in their home state, the state of domicile will not recognize their marriage.

Question 33

# Substantive Application Family Law - Divorce

Answer 33

The forum will apply its own divorce laws. Rationale: to acquire jx, at least one of the parties must be domiciled in the state.

Question 34

# Substantive Application Family Law - Child's Status (Legitimacy Rules)

Answer 34

1. Legitimacy of a child is governed by the law of the mother's domicile at the time of the child's birth. 2. The validity of subsequent acts of legitimation concerning paternity are governed by the law of the father's domicile.

Question 35

# Choice of Law Defenses

Answer 35

1. Public Policy 2. Procedural Rules

Question 36

# Choice of Law Defenses - Public Policy

Answer 36

A forum court will not apply a law that is against its own fundamental public policy. ## Footnote REMEMBER: This is for choice of law NOT recognition of judgment

Question 37

# Choice of Law Defenses - Procedural Rules

Answer 37

Regardless of the outcome of the choice of law analysis, the forum court will always apply its own procedural rules.

Question 38

# Choice of Law Statute of Limitations

Answer 38

Generally, the statute of limitations is views as procedural unless: 1. Borrowing Statute: direct a court to look at both the forum limitation period and the foreign limitations period and then apply the shorter of the bunch. 2. Limitations that condition a substantive right: If the normal choice of law analysis leads to the application of a foreign statute then apply the entire statute.

Question 39

# Domicile Domicile by Choice

Answer 39

An individual with domicile capacity acquires domicile when: 1. physical presence in the new domicile; and 2. intent to remain permanently

Question 40

# Domicile Domicile by Operation of Law

Answer 40

An individual who lacks domicile capacity is assigned to one by law.

Question 41

# Domicile Children

Answer 41

1. Newborns are assigned the domicile of their parents 2. In cases of divorce, children are assigned the domicile of their custodial parent.

Question 42

# Domicile Incompetents

Answer 42

1. Individual who is mentally incompetent is assigned the domicile of their parents 2. If an individual becomes incompetent after acquiring a domicile by choice, they retain the chosen domicile