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Flashcards in Conflict of Laws Deck (49):

The three theories for conflicts of law are

(1) vested rights (1st restatement);
(2) interest analysis
(3) most significant relationship test (2nd restatement)


To make a choice of law decision, courts apply the law of the state

in which the court sits.


The place where the parties rights "vested" is

the place where the last event occurred necessary to create a cause of action.


Under the vested rights approach, the approach is

(1) characterize the area of law (tort, contract)
(2) is the issue substance or procedure
(3) find the applicable choice of law rule


Under the vested rights approach, the choice of law rule for a tort is the law of the

place where the wrong/injury occurred.


Under the vested rights approach, the choice of law rule for a contract is the law of the

place where the contract was made (or was to be performed).


Under the vested rights approach, the choice of law rule for a procedural rule is the law of the

forum state.


Vested rights approach: problem of "characterization", if a case or issue can reasonably be characterized in two different ways, then note the fact and

apply both rules.


Under the interest analysis (government interest approach), the general approach is

(1) make a determination on each issue
(2) begin by applying the law of the forum state applies unless a party requests otherwise
(3) analyze the policies of the laws of the relevant states and the extent to which those policies and interests would be advanced by application of the respective laws


Under the interest analysis (government interest approach), the two-step application is

(1) identify the policies behind the laws;
(2) does the law's application serve the interests of that policy, does the state's interest extend to the multi-state circumstances of this case


Four typical examples of interest analysis are

(1) identify false conflicts (laws conflict, but application would not further underlying policy in this case)
(2) true conflict - apply law of forum state
(3) disinterested forum - apply either (i) law that is closest to the law of the other applicable laws of forum, or (ii) the better law
(4) "unprovided-for" cases - when no state really has an interest, apply forum law


Under the most significant relationship test (MSR test), the court applies the law of the state which was the

most significant relationship to the transaction AND the parties.


The controlling principles of the MSR test are

(2) relevant policies of the forum
(3) relevant policies of other interested states
(4) protection of justified expectations (for Ks)
(5) certainty, predictability, uniformity of result

Ones that don't matter:
needs of interstate/international judicial system, basic policies underlying the field of law, ease of determining and applying the chosen law


Relevant contacts under the MSR test for tort cases are

places of injury, place of conduct, parties' domicile, residence, place of incorporation and business, place where the parties' relationship is centered


Relevant contacts under the MSR test for contract cases are

place of contracting, negotiation, performance; location of subject matter of the K, place of parties' domicile, residence, incorporation, or business.


If in federal district court, apply the choice-of-law doctrine the

state in which the court sits.


If a case is transferred between federal judicial districts, apply the choice-of-law doctrine of the

transferor state/district, IF venue was proper in that forum.


It violates Due Process to take someone's property using the law of a state with which the

defendant has no contact.


Under the Full Faith and Credit Clause, states must recognize the ______ of other states.



The test for determining where a choice-of-law is constitutional is

(1) the state has contacts with the parties or transaction;
(2) that state has an interest in the events and outcome of the action

**Test is: must have a significant contract or aggregation of contacts, creating state interests, and that choice of law is neither arbitrary nor fundamentally unfair


Under the MSR test for tort actions, the general rules is that

the place of injury controls, unless another state has a more significant relationship.


The enforceability of a choice of law clause depends on the

contract term it is applied to.


A choice of law provision is ALWAYS enforceable if the issue is one which

the parties COULD have resolved by explicit contractual provision (i.e. the parties had full freedom of contract on that issue).


If the issue is one which the parties could NOT have resolved by explicit provision, a choice of law provision is still enforceable unless

(1) the chosen state has NO relationship to the transaction; or
(2) the chosen law is contrary to the fundamental public policy of the forum state


Under the vested rights approach, for issues relating to contract validity, the place where the contract was ___________ governs and is the place where ___________.

made or came into existence;
the last event occurred that made the contract binding:

(1) where offer was irretrievably communicated
(2) place of verbal acceptance
(3) place where acceptance was mailed
(4) if agent is used to deliver, place where acceptance is delivered


When dealing with contracts of title to land under the vested rights approach, apply the law of the state where

the land is located (situs rule).


Under the vested rights approach, for issues relating to contract performance, the place where ____________ governs.

performance takes place


Under the vested rights approach, if the issue is a matter of procedure, apply the law of the

forum state. Issues that look procedural but are usually considered substantive are statutes of fraud, parol evidence rule.

**Statute of limitations is NOT substantive under the vested rights approach (but it is under Erie). But look for a borrowing statute.


Under the interests analysis approach, if the issue is a matter of procedure, apply

the forum with the greatest interest, which usually ends up being the law of the forum state anyway.


Under borrowing statutes, the forum state applies the ______ of two potentially applicable statutes of limitation.



Under the MSR test or interest analysis for real property issues, the law of the ______ almost always has the greatest interest.

place where the property is located.


Under the vested rights approach for PERSONAL property issues, apply the law of the place where

the property was located at the time of the pertinent transaction.


Under the vested rights approach for decedents' estates issues

(1) real property - law of land's location
(2) personal property - law of decedent's domicile


The vested rights rules for corporations are

(1) state of incorporation for issues relating to the corporation's creation, dissolution, internal affairs, liability of officers and directors to shareholders (internal affairs doctrine), MSR also probably finds the same
(2) external relationships - corp's relationships with 3rd parties governed by standard choice of law rules


The three requirements to recognize the judgment of another state's court are

(1) court had jurisdiction over the SUBJECT MATTER and the PARTIES
(2) judgment is final
(3) judgment is on the MERITS


A court may decline to apply the law of a foreign state if it

violates a fundamental public policy of that state.


Children are assigned the domicile of their



Incompetents who were incompetent from birth retain the domicile of their



People who had capacity to establish a domicile but later become incompetent retain the domicile

of their choice.


Injunctions are typically _______ final.

never. The issuing court can usually go back and review., so they don't REQUIRE full faith a credit treatment, though a court can of course permissively recognize it.


The two defenses to full faith and credit are

(1) penal judgments (for offenses against the public)
(2) extrinsic fraud (if recognized as a defense by court that entered the judgment)


Extrinsic fraud defense requires

I dunno.


Full Faith and Credit does to apply to federal district courts, but __________ produce the same effect.

federal statutes.


Most states under the concept of comity will enforce the judgments of foreign _________.



To enforce the judgment of a foreign country, the judgment must

(1) be by a court that had proper jurisdiction over the parties
(2) the judicial system has regular and just proceedings
(3) some states require reciprocity


Under the Uniform Foreign Money Judgments Recognition Act, states will recognize the money judgments of foreign countries under the same standards as

Full Faith and Credit for a sister state.


A state has subject matter jurisdiction to enter a divorce as long as

at least one spouse is domiciled in the state.

This is just to declare the couple divorced. Any disposition of property requires PJ.


In order to receive full faith and credit for divorce judgments related to marital property, alimony, and child support, the issuing court must have

personal jurisdiction.


A child custody decree requires that the issuing court be in the

child's home state.