Conflicts of Law

Question 1

To change domicile a person must?

Answer 1

Abandon previous domicile, establish a physical presence in new domicile, and show an intent to remain in the new state indefinitely

A+PP+IRI

Question 2

A corporation is domiciled where?

Answer 2

In its state of incorporation

Question 3

What are the 3 approaches to choice of law?

Answer 3

traditional (Vested rights), governmental interest analysis, and most significant relationship

Question 4

What is the vested rights approach?

Answer 4

The law of the place where the legal right vested is applied, that is where the last act takes place necessary to give rise to the cause of action.

Question 5

What is the government interest analysis?

Answer 5

A law applies if it would promote the policies and purposes of the forum state. The forum state must have a true interest. First determine if there is a false (only one state interested) or a true (both states are interested) conflict. If false, apply the law of the interested state, if true, then apply the law of the forum state. If neither has an interest, also apply forum state law.

* Be sure to distinguish whether the law is “conduct regulating” (harmful conduct) or “loss-shifting.” See attached example

Question 6

When is a state interested in applying conduct-regulating laws?

Answer 6

When the wrongful conduct is within their territory or when a state domiciliary is injured anywhere.

Question 7

When is a state interested in applying loss-shifting laws?

Answer 7

When doing so would benefit a state *domiciliary.

Ex: spousal immunity in TX would be an interest for TX, if the party was a Texas domiciliary.*

Question 8

What is the most significant relationship test?

Answer 8

Apply the law of that state that has the most significant relationship, consider if application furthers the policies of the states, systemic interests such as predictability and simplicity, and whether justified expectations of the parties will be protected. If unclear which has a more significant interest, apply the law of the forum state.
*Note: for each type of issue (torts, contract, etc) there is a list of contacts that court should consider when applying the above guiding principles. Presumptions are created based on the type of issue

Question 9

What is depecage?

Answer 9

When differest states laws apply to different issues in the case. Not allowed under vested rights, is allowed for the other approaches.

Once case may constitute several legal issues. Depacage may allow court to apply different states’ laws based on each issue.

Question 10

What is renvoi?

Answer 10

When the court applies the entire law of another state including choice of law rules. This usually only applies to property rights in land.

Question 11

What law applies to tangible moveable property?

Answer 11

The choice of law in the contract OR the place where the property was located at the time of the transactions.

Question 12

What law applies to intangible property?

Answer 12

The law of the state where it was created.

Question 13

What law applies to immovable property at death?

Answer 13

The law of the situs.

Question 14

What law applies to moveable property at death?

Answer 14

The decedent’s domicile unless there is a choice of law provision in the will.

Question 16

Validity of a marriage is based on?

Answer 16

The law where the marriage was celebrated. If celebrated in a state recognizing the marriage it will be valid even in another state, unless there are compelling policy reasons (usually won’t be).

Question 17

Movable marital property is governed by?

Answer 17

The law of the state where the couple was domiciled at the time the property was acquired.

Question 18

If community property is moved to a non-community property state what is it considered?

Answer 18

Still community property.

Question 19

Will a court enforce penal laws of another state?

Answer 19

No.

Question 20

When can a court refuse to enforce a foreign country? law?

Answer 20

If it violates a fundamental and strongly held public policy.

Question 21

Procedural issues are?

Answer 21

Always governed by forum law.

Question 21

If a court has personal jx over one spouse, are its determinations over incidents of divorce entitled to full faith and credit?

Answer 21

No, only incidents of divorce determinations from bilateral divorces are entitled to full faith and credit

Question 22

Parol evidence rule is considered?

Answer 22

Substantive

Question 23

Privilege is considered?

Answer 23

Procedural.

Question 24

Damages are considered?

Answer 24

Substantive but caps are procedural.

Question 25

Statutes of limitation are considered?

Answer 25

Procedural unless inextricably bound up with a substantive right.

Question 26

Fed courts in diversity apply?

Answer 26

The substantive law of the state in which it sits and FRCP. Note, SoL are substantive for Erie purposes. A state law is substantive if it is outcome determinative. A federal court in diversity Must apply the choice of law rules of the state in which it sits (unless transferred from a proper venue).

Question 27

What is the last in time rule?

Answer 27

The later of two valid final judgments is entitled to full faith and credit.

Question 28

Under the traditional or “vested rights” approach, how do you deal with a tort case in deciding choice of law? How does this compare or contrast with the Government interest or Most significant relationship approach?

Answer 28

The law is governed by the place of the injury- where the last event necessary for the tort’s occurrence (almost always place of injury)

⇑* Contrast this with the government interest analysis; wherein there are no special rules for any particular area of law. See and Compare the attached image. Under the 2nd Restatement (Most significant relationship) law of the place of injury is presumed to be most appropriate, but may be overcome if another state has a more sign. relationship

Question 29

What is a choice of law clause, and what is its significance?

Answer 29

parties are free to choose the law that will govern their transaction, and these provisions are generally enforceable if in a contract.

* Exception: when the validity of the contract cannot be resolved solely by the choice of law. The 2nd RS only requires the state has a substantial relationship, and there is a reasonable basis for the choice… unless the chosen law is contrary to the fundamental policy of the state with the most sign. relationship.

Question 30

What approach do you take to decide the choice of law if there is a contract?

Answer 30

1. Generally, the traditional or vesting approach says use the state where the contract was accepted (as this is where the last act necessary to form a K occurs)
2. The 2^<u>nd</u> restatement says to determine which state has the most significant relationship to the contract: (1) place of negotiation; (2) where the subject matter of K is; (3) location of parties domiciles/incorporation.

* Note: make sure there is not a clause in the K stating which state laws should apply?