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Flashcards in Conflicts of Law Deck (30)
1

Full faith and credit requirements

(1) Proper jurisdiction in RENDERING state
(2) Judgment on the merits
(3) Judgment is final

Then court must recognize the judgment.

2

What are the defenses to full faith and credit application?

(1) Penal judgment - ie offense against the public
(2) Subject to equitable defenses - ie fraud

3

What defenses are NOT allowed for full faith and credit application?

(1) Tax
(2) Contrary to public policy
(3) mistake of law or fact

4

Comity

Foreign country judgments recoginzed on a voluntary basis. Look at whether foreign court had jurisdiction or fair procedures used

5

When will court recognize an ex parte divorce?

Subject matter jurisdiction over one spouse
Personal jursidction over one spouse

Rebutable preseumption as to domicile, but court will grant FF&C as to termination of marriage BUT NOT property, alimony or child custody

6

When will court recognize a bilateral divorce?

Subject matter jurisdiction over one spouse
Personal jurisdiction over BOTH spouses
At least one party domiciled in forum state

Court will grant FF&C to termination AND property, alimony and child custody

7

Domicile

Arises by
(1) Choice
(2) Operation of Law

8

Domcile by Choice

(1) Physical present and
(2) intent to be domiciled

Current domicile kept until BOTH elements satisified

9

Domicile by Law

Arises for children, lack of capacity, married women

10

Domicile of corproation

Domicile is state of incorporation

11

Who decides which choice of substantive law to apply?

If there is no constitutional mandate (doesn't have to give full faith or credit) or statutory directive that controls, choice of law used by the forum court now trying the case to determine which substantive law applies.

Use choice of law approach based on where the state the forum court sits.

12

What are the three choice of law approached

(1) Vest Rights Approach
(2) Most significant relationship approach
(3) Governmental interest approach

13

Analytical approach for Torts

Vested Rights: Place of injury
Sig. Relationship: Consider place of injury, conduct, parties residence, consider all of it
Interest analysis: If no interest then other jurisdiction

14

Vested Rights Approach

Where did the right vest?

15

Most Significant Relationship Approach

Which jurisdiction has most significant interest in outcome of litigation or to the transaction?

16

Governmental interest approach

Forum will apply it's own laws unless it has no interest - then there is a false conflict and it will apply laws of other jurisdiction

17

Analytical approach for damages

Vested Rights: Place of wrong
Sig. Relationship: Place most related to the case
Interest analysis: If no interest then other jurisdiction

18

Analytical approach for wrongful death

Vested Rights: Place of wrong (not death)
Sig. Relationship: Place most related to the case
Interest analysis: If no interest then other jurisdiction

19

Multiple state torts - what approach?

Apply plaintiff's domicile if injury also occurred there

20

Analytical approach for contracts

FIRST LOOK for express choice of law provision, if none then:

Vested Rights: If formation issue then place of formation, if performance issue then place of performance.
Sig. Relationship: Place of K formation, performance, negotiation, subject matter location, consider all of it
Interest analysis: If no interest then other jurisdiction

21

Analytical approach for land K

Vested Rights: Place of land
Sig. Relationship: Place of land
Interest analysis: If no interest then other jurisdiction

22

Analytical approach for personal property

Vested Rights: Situs at time of transaction
Sig. Relationship: Situs at time of transaction or signif. relationship found.
Interest analysis: If no interest then other jurisdiction

23

Analytical approach for Family Law

Vest rights and sig relationship:
Marriage - place of celebration
Legitimation after birth - father's domicile
Adoption - forum

Interest analysis: If no interest then other jurisdiction

24

Analytical approach for corporation

Vest rights and sig relationship:
Place of incorporation

Interest analysis: If no interest then other jurisdiction

25

What procedural laws do you apply?

Forum will always apply its own procedural laws

26

What if law is against forum state's public policy?

Forum will refuse to apply the law - use this sparingly

27

What is considered "procedural"

(1) Civil rules of procedure
(2) burden of proof
(3) rebuttable presumptions
(4) statutes of limitations
(5) direction action statutes
(6) ability to counterclaim
(7) privileges

28

What is considered "substance"

(1) irrebuttable presumptions
(2) statute of frauds
(3) parol evidence
(4) contribution among joint tortfeasors
(5) Survival of actions
(6) Adverse possession
(7) DAMAGES

29

Depecage

First restatement would say apply substantive law to all the issues. But modern trend is allow different laws to apply to different issues in a single case

30

Renvoi

Refer forum state back to its own law - most states reject this theory.