Conflicts of Law

Question 1

First step: what court can decide the case?

Answer 1

Civil procedure rules of subject matter and personal jurisdiction

Question 2

Full faith and credit for state judgments

Answer 2

Full faith and credit requirements met
Any defenses to full faith and credit
Effects of recognizing the sister state and who will be bound by it

Question 3

Full faith and credit requirements

Answer 3

1. proper jurisdiction in the rendering court
2. judgment must be o the merits
3. judgment must be final

Question 4

Proper jurisdiction requirements

Answer 4

rendered by a court with PJ, SMJ. Exception: bootstrap doctrine - question of jurisdiction fully and fairly litigated in original action, determination is res judicata and therefore entitled to full faith and credit

Question 5

Judgment on the merits requirements

Answer 5

Judgment is not on merits: based on lack of jurisdiction over the defendant, plaintiff’s lack of capacity, misjoinder of parties, improper venue, time bars like statute of limitations.
Default and consent judgments are on the merits.

Question 6

Final judgment requirements

Answer 6

Whether any further judicial action by the rendering court is necessary to resolve the litigation.
Modifiable judgments usually not final.
Modifiable as to future installments (child support) may be final as to past installments, with latter installments enforced by sister state

Question 7

Defenses to full faith and credit

Answer 7

Penal judgment (judgment punishing offense against the public)
judgment subject to equitable defense in rendering state (judgment obtained by extrinsic fraud)

Question 8

Insufficient defenses

Answer 8

tax judgment
contrary to public policy of enforcing state
rendering court made a mistake of law or fact

Question 9

Effect of sister state judgment recognition

Answer 9

Res judicata effects: merger of cause of action into judgment; bar against P suing on same cause of action when judgment favored D; collateral estoppel as to issue resolved in first litigation (causes of action different but issue of fact same) as long as issue actually litigated as is essential to first suit’s outcome

Mutuality: question of a stranger to the first action can rely upon collateral estoppel

Question 10

Enforcement of judgment

Answer 10

if entitled to full faith and credit, must be enforced, even if granted erroneously (as long as error is not a defense to full faith and credit)

Law of enforcing state governs method of enforcement

Question 11

Judgments of federal courts and administrative tribunals

Answer 11

Administrative tribunals: generally entitled to full faith and credit. Applicable to federal court by statute. Recognition of judgment required between state and federal courts, as well as between two federal courts

Question 12

Recognition of foreign country judgments

Answer 12

Comity or Uniform Foreign Money-Judgments Recognition Act (or treaty)

Question 13

Comity

Answer 13

voluntary recognition of judgments by a foreign country but is discretionary. Some states have a reciprocity requirement.
Court looks to:
foreign court had jurisdiction
fair procedures were used in adjudicating case (enforcing state’s standards used)

Question 14

Uniform Foreign Money-Judgments Recognition Act

Answer 14

granting or denying a sum of money generally subject to this act. does not cover taxes, penal judgments, judgments for alimony or child support

Question 15

Divorce recognition requirements

Answer 15

jurisdictional requirements met: one of the spouses domiciled in state granting divorce

Question 16

Ex parte divorce

Answer 16

Rebuttable presumption as to domicile: can delve into domicile when evaluating full faith and credit. Person attacking domicile has the burden of proof

Lack of jurisdiction: recognizing state, having jurisdiction over both parties, deems lack of jurisdiction state will not give full faith and credit. Subsequent marriage by either would be bigamous - exceptions: courts may adjudicate both parties’ rights to marital property within forum if state has minimum contacts; custody under UCCJA and UCCJEA if rendering state is child’s home state

Question 17

Consent divorce

Answer 17

mere fact of PJ of both spouses does not give a sufficient jurisdictional basis to satisfy full faith and credit. Even if both appear voluntarily. At least one spouse must be domiciled in forum.
If PJ of both and one domiciled, divorce judgment will be entitled to full faith and credit (bilateral divorce) - give full faith and credit as well to ancillary matters like property rights, alimony, and child custody

Question 18

Estoppel against collateral attack

Answer 18

Generally: any interested person may collaterally attack the validity of another state’s divorce decree.

certain people estopped:
parties to prior proceedings
privies of parties (daughter of father)
persons who accept a foreign divorce and remarry in reliance thereon

Divorce judgment cannot be attacked by stranger if stranger would have no standing to challenge in state of its rendition

Question 19

Alimony, property rights, child custody breakdown

Answer 19

Bilateral divorce: generally conclusive as to alimony, property rights, child custody

Ex parte divorce: grants only the divorce, generally nothing else. Must be settled by court having PJ over both parties (doctrine of divisible divorce). Can deal with property within that forum state though with sufficient minimum contacts. Child custody enforceable if state qualifies as child’s home state.

Question 20

Right to remarry

Answer 20

parties validly divorced in one state can remarry despite existence of prohibition against remarriage in state where divorce obtained

Question 21

Foreign country divorce judgments

Answer 21

court will extend comity if domicile requirement met. Everything else same as for sister state judgments.

Question 22

Domicile requirements

Answer 22

Domicile by choice

Domicile by operation of law

Question 23

Domicile by choice

Answer 23

Physical presence
Intention to be domiciled - remain permanently or for indefinite period. Motive does not matter.
(both are questions of fact)

Question 24

Domicile by operation of law

Answer 24

person has certain legal incapacity (children and incompetents)

Question 25

Children's domicile

Answer 25

follows that of custodial parents. Minor can establish another one by emancipation or marriage

Question 26

Incompetent's domicile

Answer 26

retain domicile of parents. If a person had previously had capacity

Question 27

Constitutional limitations on choice of law

Answer 27

Due Process and Full Faith and Credit If the forum state has significant contacts with parties or subject matter and legitimate interest in regulating outcome, not constitutionally bound to apply foreign state's conflicting law by either.

Question 28

Vested rights approach (First Restatement)

Answer 28

characterize area of substantive law determine the particular choice of law rule localize the rule to be applied Note: forum will generally apply its own law in characterizing issue even if state where issue arose would apply different characterization

Question 29

Most significant relationship approach (Second Restatement)

Answer 29

Examine connecting facts and public policy What are the needs of the interstate or international systems What are the relevant policies and interests of the forum What are the policies and interests of the other interested jurisdictions Are the justified expectations of the parties to be protected What are the basic policies underlying the particular substantive field of law Will application of a given law aid certainty, predictability, and uniformity of result May the determination and application of a specific law be made with ease

Question 30

Interest analysis approach

Answer 30

Start with assumption that forum will apply its own law. Does forum have interest in the litigation? No - false conflict situation, forum will apply law of second state. Yes - true conflict situation, forum reconsider own policies Legitimate interest: forum will apply its own law Disinterested forum (and forum non conveniens available): forum should dismiss the case No forum non conveniens: forum may either make its own value judgment as to which law is better or it may apply the law of the state that most closely resembles its own law Unprovided-for case (no legit interest): unsettled law, but apply law of the forum

Question 31

Choice of law rules for torts: Vested (First Restatement) approach

Answer 31

look to the place of the wrong (of the injury) Cause of action: the law of the place of the wrong Vicarious liability: place of the wrong governs questions of vicarious liability Damages, contribution among joint tortfeasors, survival and abatement of actions, wrongful death: place of the wrong

Question 32

Choice of law rules for torts: Most significant relationships (Second Restatement) approach

Answer 32

Look to the place of the injury place where conduct causing injury occurred, domicile, place where relationship of parties centered (the place of injury most important). Also consider policy oriented principles involved Liability: law of the place with the most significant relationship to the occurrence and the parties Defenses: charitable immunity - court will look to place of injury and conduct to determine most significant relationship Vicarious liability, damages, survival and abatement, wrongful death: law of state with most significant relationship Contribution among joint tortfeasors: most sig related, but if both tortfeasors domiciled in same place, that may win as most sig

Question 33

Choice of law rules for torts: interest analysis

Answer 33

Same as with all substantive areas Liability: look to forum state assuming it had a legitimate interest in applying own law Damages: state of plaintiff's domicile has a legitimate interest Wrongful death: forum state generally apply its own wrongful death statute. SOL, damages, who may sue included in wrongful death will also be applied as general rule

Question 34

Multiple state tort rule

Answer 34

Tort injury occurs in more than one state: majority rule - law of plaintiff's domicile applied (assuming injury also occurred there)

Question 35

Workers Comp rules

Answer 35

Gen: states want to apply own worker's comp where they have jurisdiction. Look to see if: the employment contract was entered in that state, injury occurred in the state, employee resides in state, employment relationship performed in state May recover in more than one state, but recovery in one state credited against second state Wrongful death recovery: Courts will not allow tort suit for wrongful death if already recovered in other state if first state law gives immunity from tort liability

Question 36

Choice of law rules for contracts: express choice of law

Answer 36

prevails unless contrary to public policy there is no reasonable basis for party's choice true consent not given

Question 37

Choice of law rules for contracts: Vested (First Restatement) approach

Answer 37

the place where the contract was made controls validity and construction of the contract, and there place where the contract is to be performed governs issues relating to performance Validity: existence of capacity governed by the law of the place of contracting Performance issues: generally governed by law of the place of performance Rights and powers of third parties: look to the law of the place of making the contract to determine rights of third party beneficiaries and whether the contract can be assigned

Question 38

Choice of law rules for contracts: Most significant relationship (Second Restatement) approach

Answer 38

What are the needs of the interstate or international systems What are the relevant policies and interests of the forum What are the policies and interests of the other interested jurisdictions Are the justified expectations of the parties to be protected What are the basic policies underlying the particular substantive field of law Will application of a given law aid certainty, predictability, and uniformity of result May the determination and application of a specific law be made with ease Plus place of contracting, negotiation, and performance; the location of the contract subject matter; domicile of parties. Land contracts controlled by law of situs (creating or transferring interest in land only, but not things like real estate broker listing agreement) Personalty contracts are controlled by place of delivery Insurance contracts controlled by law of insured's domicile casualty insurance controlled by law of the location of the insured risk loan contract law of the place where repayment is required Validity: capacity governed by law of the place where the party whose capacity is in question is domiciled. Formalities that meet requirements where parties executed the contract will usually be applicable. Rule of validation: state's law that serves to uphold contract will apply Performance issues, rights and powers of third parties: state with most significant relationship

Question 39

Choice of law rules for contracts: Interest analysis approach

Answer 39

Start with assumption that forum will apply its own law. Does forum have interest in the litigation? No - false conflict situation, forum will apply law of second state. Yes - true conflict situation, forum reconsider own policies Legitimate interest: forum will apply its own law Disinterested forum (and forum non conveniens available): forum should dismiss the case No forum non conveniens: forum may either make its own value judgment as to which law is better or it may apply the law of the state that most closely resembles its own law Unprovided-for case (no legit interest): unsettled law, but apply law of the forum

Question 40

Choice of law rules for property: real property analysis

Answer 40

First and Second Restatement: look to the law of the situs (possible under Second Restatement to find a more significant relationship) Interest: less emphasis on situs

Question 41

Choice of law rules for property: personal property

Answer 41

First and Second Restatement: look to law of the situs at time of the relevant transaction If intangible: look to "situs of the debt" - domicile of the debtor

Question 42

Choice of law rules for property: administration of trusts

Answer 42

generally governed by the law of the place where the trust is administered

Question 43

Choice of law rules for inheritance

Answer 43

by intestacy: governed by lex situs. Questions of validity of the will, rights of nonmarital or adopted children, marital rights in land. Determined by deceased domicile at the date of death

Question 44

Choice of law rules for marriage

Answer 44

Valid where celebrated: valid everywhere (void is void everywhere) Exception: violation of a prohibitory rule of the domicile of one of the parties and the parties immediately return to and become domiciled in the state

Question 45

What is a prohibitory rule versus a directory rule

Answer 45

Directory rules: requiring marriage license, parental consent, certificate of blood test (violation will not render marriage invalid) Prohibitory rules: express the strong public policy of the state (incest, polygamy, marriage under a minimum age)

Question 46

Annulment rules

Answer 46

governed by the law of the place where the marriage was celebrated (although there is a trend to most significant relationship to marriage)

Question 47

Choice of law: divorce

Answer 47

Governed by law of plaintiff's domicile (the forum state) Premarital agreement: usually governed by state where it was entered into or state with most significant relationship to parties

Question 48

Choice of law: Child's status

Answer 48

attempts to legitimate: father's domicile recent trend is child's domicile Property incidents of status: First restatement: law governing disposition of property in question Second Restatement: look to law of state creating status to decide property incidents unless public policy states otherwise

Question 49

Choice of law: adoption

Answer 49

own local law to govern adoptions. Property incidents of adoption same as for child's status

Question 50

Choice of law: corporations

Answer 50

First Restatement: law of the place of incorporation Second Restatement: also for place of incorporation for many conflicts questions Interest analysis: same as for other subject matters

Question 51

Arguments against application of a foreign law

Answer 51

Procedural law - forum applies its own (burdens, SOL, privileges, rebuttable presumptions) Law is against forum's public policy (RARE - forum would apply its own; interest analysis does not allow this, will apply public policy affirmatively to determine if its own law should be applied) Law is penal or tax law - First Restatement: could be a valid defense that foreign state's law was a tax or penal law Second Restatement: prohibit penal laws

Question 52

Depecage

Answer 52

First Restatement: forum applies choice of law for everything. Modern approach: direct forum to apply on each issue separately

Question 53

Renvoi

Answer 53

Possible results - Remission: conflicts rules of second state direct back to the first. Reference to internal law is partial, whole law is total. Transmission: conflicts rules of second state refer to forum state to the law of third state (may be partial or total) Neverending Circle: constant references to whole law of each state Present status: Most states reject renvoi, some accept reference back and apply own law. Renvoi allowed in: validity of marriages, status of parents' kinship with child, dispositions of interest in land Federal Tort Claims Act: forum will first refer to place of the act / omission and will apply conflicts rule of that place

Question 54

Conflicts of law: state versus federal law

Answer 54

Federal law in state courts: some areas federal courts have SMJ. Some areas state courts permitted to enforce federal law concurrently. Some federal statutes direct state courts to enforce federal rights. Look for the converse Erie problem: federal substantive rights versus state procedural law that would result in denial of federal right - apply the federal law State law in federal court: no federal general common law. Federal district courts must apply substantive law of the state where district court sits (Erie) expanded under Klaxon to require application of conflicts of law rules as well

Question 55

Proof of foreign law

Answer 55

Traditional view: law of second state is fact. Today: most states take judicial notice of sister state and federal law - treated as law rather than fact Foreign country law: must still be proved as fact. Foreign law not proved: either presume foreign law similar to forum law; apply forum law; dismiss action