Flashcards in Conflicts of Law Deck (32):
If a person decides to move from NY to Fla and is killed in transit in VA. Where did the person die domicile?
NY - keep old domicile until acquire a new one
VA - possession is not enough
Fla - intent is not enough
Where is the domicile of a child?
Child has no legal capacity - assigned a domicile by operation of law - domicile of parent
- in case of divorce, domicile of the parent who has physical custody
When should a forum state should recognize the judgement by a sister state court?
judgment is entitled to:
1) full faith and credit requirement (valid jurisdiction over parties and subject matter; final judgment; decided on merits)
2) no valid defense
When is a judgment that is modifiable that will be enforce under comity?
Two modifiable judgments:
Future child support and/or future alimony
- is a final judgment for amount paid
Are judgments on appeal final judgment?
No, not unless rendering state would allow enforcement of such judgment if they were sought to be enforced there
If a judgment in one state dismissed for a statute of limitations entitled to full faith and credit in recognize state?
No. Judgment on the merits.
Is a default judgment on the merits entitled to full faith and credit?
Yes. default and consent judgments are final judgments.
What state law controls to determine full faith and credit requirements?
Rendering state law, not recognizing state law.
What defenses would prevent a forum state from recognizing the judgment by a sister state court?
1) judgment is penal regarding an offense against the public - does not include punitive damages
2) extrinsic fraud - fraud that could not have been coped with in earlier trial (bride of judge; does not include perjury)
Would a defense based on intrinsic fraud prevent a forum state from recognizing the judgment by a sister state court?
No - not a valid defense (such as perjury in prior proceeding)
Only extrinsic fraud (bride of judge)
Would a defense based on a violation of the forum's state public policy prevent a forum state from recognizing the judgment by a sister state court?
No - not a valid defense.
Would a defense based on a mistake by judge in sister state court prevent a forum state from recognizing the judgment by a sister state court?
No - remedy is to appeal the incorrect judgment
Would a defense based on inconsistent judgments prevent a forum state from recognizing the judgment by a sister state court?
No; not a valid defense
- later judgment can be enforced even though it is inconsistent with a valid earlier one
- enforce the last judgment in time
When should a forum state should recognize the judgement by a foreign country court?
1) jurisdiction must be proper (fundamental fairness - due process)
2) fair procedure in foreign country
- use recognizing state law for two part comity judgment
When should a forum state should recognize the judgement regarding divorce by a sister state court?
when one spouse is domicile in the state rendering the divorce
- ex parte
- bilateral (plus both spouses are subject to personal jurisdiction)
Can a spouse attack validity of divorce granted in another state based on evidence obtain after divorce?
Yes - post divorce can attack jurisdiction and prevent divorce from being recognized in other states
When should a forum state should recognize the judgement regarding alimony or child custody by a sister state court?
when rendering state has personal jurisdiction over spouse who property rights are in issue
- watch for ex parte divorce (no personal jurisdiction)
When should a forum state should recognize the judgement regarding child custody by a sister state court?
Valid jurisdiction for determining child custody lies only in the child's home state
What is a constitutional threshold issue for a court to apply the choice of law?
Due process and faith, full and credit
- state may chose its own law if the state must have a significant contact with parties that gives it a legitimate interest (easy test to satisfy)
- no weighing of interest of the states
What situations do not meet the constitutional threshold issue for a court to apply the choice of law?
1) party moves to a state and the move creates the only contact with that state - unconstitutional
2) only contact is that the suit is brought in that state - unconstitutional
What are three separate choice of law approaches?
1) vested rights approach (VA)
2) most significant relationship approach
3) government interest analysis approach
What approach does Virginia follow for choice of law?
vested right approach - territory approach
Virginia has rejected:
1) most significant relationship approach
2) governmental interest approach
Under the vested rights approach followed by Virginia, the law to be applied is the law where ________.
the rights of the plaintiffs vested
Under a vested right approach, in a torts case, what law would apply?
Plaintiff's right to sue vest at the moment where the injury so place of injury (not the where the negligence occurred)
Under a vested right approach, in a contracts case, what law would apply?
Plaintiff's right to sue on validity of contract vest at the moment contract is made.
Under a vested rights approach, how does the approach regarding torts operate?
1) place of conduct for rules regulating conduct (Statutes for standard of care)
2) loss distribution rules - alleged tort is defamation then place of publication
3) loss distribution rules - place of wrong
Under a vested rights approach, how does the approach regarding contract operate?
1) parties choose the law to be applied in the contract (any law can be choose for construction, but limits on validity)
2) does a special UCC rule apply (forum law - substantial relationship to transaction?
3) does rule of validation apply (claims of usury - apply law to uphold validity)?
4) apply the law of the place of making of the contract
Under a vested rights approach, can parties choose the law of matters effecting validity of a contract?
Yes, only if
1) if not contrary to public policy to state chosen
2) reasonable relationship
3) no duress ("take it or leave it")
In determining the validity of a contract under a vested rights approach, where is the place of the making?
Place where last act took place, usually place of acceptance
Under a vested rights approach regarding personal property, what law should the court apply?
Location of the personal property at time of the transaction
- exception for intestate succession (apply law of domicile of deceased)
- secured transactions under UCC (apply law of debtor's residence)
What is a borrowing statute?
A statute that borrows the shorter of the statue of limitations between two states where place of cause of action arose