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Flashcards in Conflict of Laws Deck (19)
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1
Q

What are the three types of approaches to addressing conflict of laws questions?

A

The first restatement approach (bright-line), the “interest analysis” approach, and the second restatement (mash-up) approach

2
Q

What are four considerations/exceptions to application of the first restatement (bright-line) approaches to conflict of laws questions?

A

RADS: Renvoi: (“send back”) – both states say “we defer to the other state”… Renvoi says that in that case, the forum law wins! Area of Substantive Law: when the court has to decide if it’s a contract or a tort… Dépeçage – (“cutting up”) courts will apply issues separately… different jurisdiction laws for the same matter Substance Versus Procedure: procedural issues applied by forum law even if foreign law is applying substantively! (SOL are procedural… so you apply the forum law SOL)

3
Q

Under the first restatement approach to conflict of laws, how is choice of law for torts determined?

A

Torts – apply the law of the state where the last event creating liability occurred (e.g. where the accident occurred, even if product manufactured elsewhere)

4
Q

Under the first restatement approach to conflict of laws, how is choice of law for contracts determined?

A

Contracts – questions of K formation: apply law of state where K was formed. Issues of K performance: apply the law where performance was to be rendered.

5
Q

Under the first restatement approach to conflict of laws, how is choice of law for property determined?

A

where the property is located (real property); personal property… where the transaction occurred

6
Q

How would a state with the “interest analysis” approach to addressing conflict of laws proceed in analyzing a choice of law question?

A

CUT: Contact with the case (which state has the most bonafide interest), Unprovided-for or “no interest” (neither state has an interest in application of its law), True Conflict (both states want their law applied) — usually the forum state’s law gets applied!

7
Q

How does the “interest analysis” approach to conflict of laws treat questions of substance versus procedure?

A

This approach makes no distinction!

8
Q

How does the first restatement approach to conflict of laws treat questions of substance versus procedure?

A

Questions of procedure (including SOL) are governed by forum law!

9
Q

How does the second restatement approach to conflict of laws treat questions of substance versus procedure?

A

Questions of procedure (including SOL) are governed by forum law! Exception if application of a shorter SOL would be “unreasonable.”

10
Q

What are the “general factors” to consider under the second restatement approach to conflict of laws?

A

FINE BUD: Forum’s Policies, Interested States, Needs of System, Expectations of the Parties (esp for K actions), Basic Field of Law’s policies, Uniformity, Determination (and application) ease

11
Q

How does the second restatement approach to conflict of laws treat torts actions differently and how will they be analyzed?

A

(CRIL): Conduct Causing Injury, Relationship among Parties, Injury Suffered, Location of Parties

12
Q

How does the second restatement approach to conflict of laws treat contracts actions differently and how will they be analyzed?

A

(SOPP): Subject Matter, Offer – Acceptance Location, Parties Place, Performance Place

13
Q

On a SOL question, how would the Uniform Conflict of Laws Limitations Act apply?

A

Says if a claim is based on state X’s substantive law, then State X’s SOL applies… note that the UCLLA is NOT popular

14
Q

How is choice of law determined in a case involving intestate succession?

A

It is governed by law of the state in which real property is located. For personal property it is governed by the law of the decedent’s last domicile.

15
Q

How is choice of law determined in cases involving the validity of a marriage?

A

If the validity is challenged, court will apply the law of the state where marriage took place unless to do so “seriously violates the public policy of the forum.”

16
Q

How is choice of law determined in cases involving the termination of a marriage?

A

Forum law governs the question of whether sufficient grounds to end the marriage exist.

17
Q

How would a federal district court handle a state choice of law question when it is sitting in diversity?

A

Erie Doctrine has been extended to require federal district court to apply the choice-of-law rules of the state in which IT IS LOCATED. Klaxon.

18
Q

How will a forum treat a request to apply foreign penal law?

A

States will not enforce the penal laws of other states/countries. Penal laws include criminal laws, civil fines, but NOT punitive damages.

19
Q

What are the key ways that a state would get jurisdiction over a child custody judgment?

A

Home state (6 months or where child lives at the time of the action), emergency jurisdiction, significant connection jurisdiction, or vacuum jurisdiction (no other place)