Conflict of Laws Flashcards
(75 cards)
1
Q
To have a conflict of law, what must you have?
A
More than one jurisdiction: 2 state governments or a state government and the federal government.
2
Q
Law comes in a variety of forms:
A
Includes court opinions, statutes, court rules, regulations, court order, judgement.
3
Q
Various laws distill to 3 subcategories appearing on the bar exam:
A
- Personal Jurisdiction Questions; 2. Choice of Law Questions; 3. Recognition of Judgment Questions
4
Q
Personal Jurisdiction Questions call for what?
A
An analysis of a court’s assertion of judicial power over the parties to a law suit.
5
Q
Choice of Law Questions call for what?
A
Choosing among competing legal principles by analyzing the reach of competing jurisdictions’ legislative or other law-making power.
6
Q
Recognition of Judgment Questions call for what?
A
Analyzing the effect in one jurisdiction of a judgment rendered by a court in another jurisdiction.
7
Q
The trigger for a conflict of laws issue on a bar exam question is what?
A
a jurisdictional power struggle
8
Q
What is a forum court and why does it matter?
A
The forum court is the court where the law suit is pending. One should resolve conflict of laws problems from the point of view of the forum court.
9
Q
The US Supreme Court has ruled that a court’s power to assert personal jurisdiction is measured by what?
A
A defendant’s contacts with the forum state.
10
Q
Contact analysis is divided into what two types of jurisdiction?
A
Specific jurisdiction and general jurisdiction
11
Q
Specific Jurisdiction:
A
A court may exercise specific jurisdiction over a defendant who has “minimum contacts” with the forum state. In this case, the suit arises out of or is related to the defendant’s contacts with the forum. Quality of contacts is what matters.
12
Q
General Jurisdiction
A
A court may exercise general jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum state, so long as the contacts are sufficiently numerous to amount to continuous and systematic activity in the forum state. The contacts can be irrelevant to the suit. Quantity of contacts is what matters.
13
Q
Personal Jurisdiction in Federal Courts should be analyzed how?
A
Analyze the power of the federal court to assert personal jurisdiction over a particular defendant in the same way that you would analyze the power of a state court within the jurisdiction where the federal district court sits.
14
Q
What are the two varieties of Conflicts of Laws?
A
- Conflicts between State and Federal Law; 2. Conflicts between State Laws.
15
Q
Conflicts between State and Federal Law is governed by what?
A
Erie Doctrine and the Supremacy Clause
16
Q
Conflicts between State laws is governed by what?
A
Choice of Law Methodologies (First Restatement, Government Interest Analysis, and Second Restatement.
17
Q
What is the Restatement (First) of Conflict of Laws approach?
A
Territorial approach.
18
Q
What is the Restatement (Second) of Conflict of Laws approach?
A
Most significant relationship approach.
19
Q
Territorial approach calls for a 3 step analysis:
A
- Characterize the area of substantive law of the conflicting laws: e.g., contract, tort, or property; 2. Determine the particular choice of law rule that governs, e.g., for tort issues, the Restatement First designates the place where an accident occurs as providing the legal principles that govern liability; and 3. Localize the rule that applies, e.g., if the law where the accident occurred governs, one must determine where the accident actually occurred under the case’s facts.
20
Q
The most famous rule for the First Restatement is what?
A
Lex loci delicti
21
Q
What is lex loci delicti?
A
A rule for torts: the law of the place of wrong determines whether a person has sustained a legal injury. Even if negligence that caused the injury occurred in a different jurisdiction, we look at where did the injury in fact occur.
22
Q
For contracts, what rules does the First Restatement provide?
A
A variety of rules, although an important general principle provides that the law of the place of contracting determines the validity and effect of a promise for most purposes.
23
Q
For property issues, almost all First Restatement sections follow what rule?
A
The situs rule: the law of the place where the property is located governs.
24
Q
How does a governmental interest analysis resolve conflicts issues?
A
By referring to policies underlying competing laws.
25
From what premise does a governmental interest analysis start?
that a forum should apply its own law unless a party requests that another law apply.
26
If a party requests that another law should apply, what are the steps that a court will use if it applies a governmental interest analysis?
1. Identify policies through the ordinary processes of construction and interpretation. Then the court should evaluate each state's policies in light of the parties' contacts with the state to determine if the policies are relevant to the particular dispute before the court. If the state's policies are relevant to the dispute, then the court should conclude that the policies represent interests of the states.
27
4 outcomes of a governmental interest analysis:
1. False conflict; 2. Apparent and true conflict; 3. Disinterested forum; 4. An unprovided for case.
28
What is a false conflict in a governmental interest analysis?
If the court finds that one state has an interest and the other does not, the court should apply the law of the interested state.
29
What is apparent and true conflict in a governmental interest analysis?
If the court finds an apparent conflict between interests, it should ascertain whether a "more moderate and restrained interpretation" of the policy or interest of one state or the other will avoid the conflict. If the court finds that the conflict of legitimate interests in unavoidable, the court has identified a true conflict and should apply forum law.
30
What is disinterested forum in a governmental interest analysis?
If the forum court has no interest in applying its own law, but determines that two or more states have legitimate competing interests, the forum can dismiss the case pursuant to the doctrine of forum non conveniencs. If forum non conveniens is not available, the forum court may take one of two routes: 1. make its own judgment as to which law is better; or 2. apply the law that most closely resembles its own.
31
What is an unprovided for case in governmental interest analysis?
If the court finds that no state has an interest in the application of its law, the forum law should govern.
32
What does the Second Restatement do with regard to it's analysis policy?
Seeks to incorporate the advances in modern approaches into a flexible approach that avoids the mechanical rigidity of the First Restatement. It is a "most significant relationship" analysis.
33
Except for a few areas for which it provides bright line rules, the Second Restatement approach interweaves two elements:
The policies of Section 6 and connecting factors of particular significance for various types of lawsuits.
34
Section 6 of the Second Restatement lists what?
general policy consideration that may serve as guideposts in any analysis under specific sections of the Restatement Second.
35
What are some of the considerations included in Section 6 of the Second Restatement?
1. The needs of the interstate and international systems; 2. the relevant policies of the forum; 3. the relevant policies of other interested states including their interests in having their law applied to the particular issue; 4. the protection of party expectations; 5. the basic policies underlying the particular field of lay, 6. the objectives of certainty, predictability, and uniformity of result; ;and 7. the ease of determining and applying the law previously identified as applicable.
36
What are connecting factors for Second Restatement analysis ?
For particular areas of law, the restatement lists "connecting factors" that provide specific guidance about the jurisdictions that have a claim to the application of their laws. These are the ones that are common concerns for that field of law--of which we have from taking the substantive courses.
37
What is The Most Significant Relationship in a Second Restatement analysis?
Absent a preexisting choice by the parties, the court is to apply the law of the jurisdiction with the most significant relationship to the dispute. The court should arrive at this conclusion by reference to both the policy provisions of Section 6 and the connecting factors.
38
What is meant by saying that the Second Restatement analysis is a qualitative analysis and a quantitative analysis?
The contacts are to be evaluated according to their relative importance to the particular issue. This is done by analyzing contacts in light of Section 6.
39
Steps for a Bar Exam Answer:
1. Describe Pennsylvania's hybrid approach; 2. Perform the first steps of governmental interest analysis: identify policies behind competing laws and compare each jurisdiction's policies with the relevant contacts in the jurisdiction to determine whether the policies are implicated in this case; 3. For false conflicts, apply the law of the interested state; 4. For true conflicts, resolve the conflicts by applying the law of the state with the greatest interest. Case law suggests that the state with the greatest interest will be the state with the most significant relationship with the dispute.
40
How should one evaluate the contacts for a Bar Exam Answer?
Evaluate the contacts qualitatively, not just by counting them. To perform this qualitative analysis: 1. List the connecting factors (contacts between each state, the parties, and the subject matter); 2. Evaluate the connecting factors by reference to the policy oriented principles listed in Section 6.
41
Additional tip for Bar Exam Answer:
If there is time, add a short description of these three approaches and venture a short answer on how the conflict of laws would be resolved under each approach individually.
42
On a Bar Exam Question you usually need to talk about the general approach of Pennsylvania (hybrid) plus what?
the specific rule for that particular area of law.
43
What is Pennsylvania's specific rule for property?
For all choice of law approaches, the situs of the property will generally provide the governing law for issues respecting the property. For tangible property, the analysis focuses on the situs of the property at the time of the transaction. This makes sense because the situs will have the greatest interest in applying its law.
44
2 issues in Contract law with special rules for Pennsylvania's analysis of choice of law:
1. Choice of law clauses; 2. Choice of forum clauses.
45
What is Pennsylvania's rules regarding choice of law clauses?
Pennsylvania honors the law's basic policy of carrying out the contracting parties' intent to choose expressly a governing law for their disputes. Qualifications to this general principle exist regarding 1. UCC; 2. Restatement Second; 3. Adhesion Contracts.
46
What is Pennsylvania's rule regarding UCC?
For contracts governing the sale of goods, Pennsylvania's version of the UCC provides the general rule that the parties choice should be honored so long as the chosen jurisdiction bears a reasonable relation to the transaction.
47
What is Pennsylvania's rule regarding Second Restatement?
Based on Section 187: 1. instructs the courts to disallow the parties' choice where the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice; 2. also authorizes courts to refuse to apply a law that is contrary to a fundamental policy of a state that has a materially greater interest in the dispute than the chosen state.
48
What is Pennsylvania's rule regarding Adhesion Contracts?
Pennsylvania courts will not honor a choice of law clause if the parties did not truly consent to the clause.
49
What is a Choice of Forum Clause?
With these clauses, parties to a contract designate the court where their disputes must be resolves.
50
What view does Pennsylvania use for Choice of Forum Clause?
Modern View
51
Modern View of Choice of Forum Clauses:
Acknowledges that while private parties may not contract to prevent a court from asserting its jurisdiction, a court of proper venue and jurisdiction should nonetheless decline to proceed with a case where the parties have freely agreed that the litigation should be conducted in another forum. But the agreement must not be unreasonable at the time of the litigation. Mere inconvenience does not establish unreasonableness; instead, recognition of the choice of forum clause must subvert the interests of justice before a court should decline to enforce it. (fair fighting rule)
52
What is Pennsylvania's rule regarding marriage?
Pennsylvania follows the general "place of celebration rule": the validity of marriage is governed by the place where the marriage was solemnized.
53
What is Pennsylvania's rule regarding corporations?
The law of the state of incorporation determine the duties and liability of an officer or director as well as issues related to creation and dissolution.
54
What is Pennsylvania's rule regarding Substance/Procedure Dichotomy?
Forum law governs questions of procedures. A court can escape the application of a foreign state's laws by characterizing a particular legal issue as procedural. Rules that concern the conduct of litigation are generally procedural and rules that govern out of court conduct are generally substantive.
55
How a question comes out may turn on the characterization of the case, such as whether it is contract or property. What does Pennsylvania prefer when faced with this choice?
property. Mention both.
56
What is the rule for statues of limitations in Pennsylvania in choice of law?
Traditionally deemed to be procedural, so apply law of forum. Pennsylvania has a statute that is known as a borrowing statute, provides that a court should apply the shorter of two competing limitation periods.
57
What are public policy considerations in Pennsylvania in choice of law?
Traditionally, courts have refused to apply a foreign law if it is contrary to a strong public policy of the forum. The Second Restatement validates such a refusal, if the court carefully considers its decision.
58
What are domicile considerations in Pennsylvania for choice of law?
1. Individuals: physical presence and intent to be domiciled in a particular place are both requirements for establishing domicile; 2. Corporations: domiciled in their state of incorporation.
59
How to apply the Erie Doctrine on the Bar Exam?
Where state and federal law conflict, one begins the analysis of choosing between the two laws by identifying what type of federal law is implicated: 1. Federal statutes; 2. Federal Rules of Civil Procedure; 3. Federal Court made law
60
What does one look at in conflict of law where a federal statute is implicated?
Supremacy Clause requires that federal law govern in the face of conflicting state laws (so long as the federal statute is a constitutionally valid exercise of congressional power.)
61
What does one look at in conflict of law where Federal Rules of Civil Procedure is implicated?
A Federal Rule of Civil Procedure should govern in the face of a conflicting state rule so long as the Federal Rule is valid under the Rules Enabling Act and the Constitution. The rule will be valid if it regulates procedure.
62
What does one look at in conflict of law where a federal court made law is implicated?
Federal court-made law may govern in the face of a conflicting state rule only so long as the application of federal law does not violate the aims of Erie: discouraging forum shopping and avoiding inequitable administration of laws.
63
The Rule of Klaxon v. Stentor:
A federal court exercising diversity jurisdiction should apply conflict of law rules of the forum state. Thus, where Erie analysis points to state law, one must choose the appropriate state law using the forum state's choice of law methodology.
64
What issue does a recognition of judgment question raise?
Whether a judgment rendered in one jurisdiction must be honored in the courts of another jurisdiction.
65
Recognition of Judgment questions call for a two step analysis:
1. Determine whether the judgment is entitled to Full Faith and Credit; 2. if the Full Faith and Credit principle attaches, the court that is asked to honor the judgment must then ascertain whether the rendering court would give the judgment res judicata or collateral estoppel effect.
66
What is the Full Faith and Credit Principles and where do they come from?:
The Full Faith and Credit Clause governs the relationship between states. A statute implementing the Full Faith and Credit Clause governs the relationship between state and federal courts
67
What does the Full Faith and Credit principle require?
Requires one court to give a judgment the same sanctity and effect it would enjoy in the court that rendered the judgment.
68
In order for the Full Faith and Credit principle to attach: what 3 requirements must be satisfied?
1. Jurisdiction: the court that rendered the judgment must have possessed subject matter jurisdiction over the case and personal jurisdiction over the defendant OR AT LEAST must have allowed a full and fair opportunity to challenge its jurisdiction; 2. On the Merits: the rendering court's judgment must be on the merits; 3. Final: the rendering court's judgment must be final.
69
Res judicata:
The doctrine of res judicata or claim preclusion prevents a party from relitigating an entire suit.
70
For res judicata to apply under Pennsylvania law:
For res judicata to apply under Pennsylvania law, 3 requirements must be satisfied: 1. the rendering court judgment must be final; 2. the rendering court judgment must involve the same cause of action as the honoring court lawsuit: either the second suit must involve the same subject matter and the same ultimate issue or the second suit must seek relief for the same harm; 3. the honoring court suit must involve the same parties or their privies as the rendering court suit. Privies include such individuals as successors in interest, holders of future interests, and beneficiaries of actual parties to the rendering court suit.
71
Collateral Estoppel:
The doctrine of collateral estoppel or issue preclusion prevents a party from relitigating issues in a subsequent law suit. Collateral estoppel applies even where the cause of action is different in the second suit than in the first suit.
72
For Collateral Estoppel to apply under Pennsylania law, three requirements must be satisfied:
1. The issue must have been actually litigated and decided in the first proceeding.; 2. The issue must have been necessary to support the judgment of the first proceeding; 3. Although the party trying to benefit from collateral estoppel need not have been a party to the first proceeding, the party against whom collateral estoppel is asserted must have been a party or in privity with a party to the prior action. In addition, the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior action.
73
What is the general rule regarding divorce judgment?
Divorce decrees deserve full faith and credit in one state if the rendering state had proper jurisdiction and the decree is valid in the rendering state. Jurisdiction is established if one of the parties is domiciled in the rendering state.
74
What is the Pennsylvania requirement regarding divorce?
Pennsylvania law provides that a spouse is not entitled to commence an action for divorce in the commonwealth unless at least one of the parties has been a bona fide resident for at least six months immediately prior to the commencement.
75
Divisible divorce:
Although a state can render a valid ex parte divorce decree where only one spouse is domiciled in the state, the same rule does not govern related matters such as property settlements, alimony, support, and child custody. The result is to make divorce divisible--a decree can be valid to the extent that it affects marital status, but invalid as to other matters concerning personal obligations. For the decree to be valid as to such personal obligations, the rendering court must have personal jurisdiction over both parties.
