Conflict Of Laws Bar Outline 4a1d4s

Conflict of Laws I. Recognition of Foreign Judgments A. problem areas: 1. must have been proper jurisdiction in rendering court 2. any defenses to full faith and credit 3. effects of recognizing a sister judgment B. Full faith and credit requirements 1. proper jurisdiction in the rendering court 2. judgment on the merits 3. judgment must be final C. Good Defenses to Full Faith and Credit 1. judgment is penal (punishes offense against public) Π = state 2. judgment was procured by extrinsic fraud (bribing judge, etc) D. Bad Defenses to Full Faith and Credit 1. tax judgment 2. judgment is contrary to the recognizing state’s public policy 3. mistakes of law and/or fact were made (issue for rendering court) E. Foreign Country Judgments 1. Comity given if recognizing courts due process standards are satisfied both in of: a. jurisdiction was proper (minimum s) b. fair procedures were used during earlier litigation F. Family Law Judgments 1. Divorce decrees a. jurisdiction was proper –one spouse domiciled in rendering state b. person attacking jurisdiction isn’t estopped from doing so i. subject to personal jurisdiction in earlier proceeding ii. played meaningful role in earlier proceeding iii. privity with parties in earlier proceeding iv. marry or remarry in reliance on earlier proceeding 2. Ancillary maters: property and custody awards a. jurisdiction was proper i. For property, jurisdiction proper if p.j was proper over spouse whose property rights are at issue ii. For custody, jurisdiction is proper in the child’s home state b. Divisible Divorce Doctrine - judgments are severable II. Domicile (start discussion with why domicile is being discusses) A. Domicile of choice – domicile acquired by one who has domicile capacity 1. physical presence in place i. can be very short time 2. intent to be domiciled in that place i.. don’t confuse with motive 3. if multiple residence, primary is domicile

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4. can only acquire a new domicile by perfecting two parts in that place B. Domicile by operation of law – domicile assigned to one lacking capacity 1. Infants will be assigned the domicile of their parents or custodial parent 2. Mental incompetent assigned domicile of parent, if after then choice III. Choice of Law – (law selected by the forum court using its choice of law approach) A. Vested Rights Approach 1. Characterize substantive area of law involved 2. State the appropriate vesting rule 3. State what state “wins” – where the rights vest 4. State the result B. Most Significant Relationship Approach (IL Follows) 1. Under this approach the court will apply the law of that state which is most significantly related to the outcome of the litigation. To determine this, they will look at (i) the connecting facts and (ii) certain policy principles. 2. Discuss the connecting facts (where and what) 3. Discuss the policy principles 4. state what state “wins” and the result C. Governmental Interest Approach 1. Under this approach the court will apply its own law as long as it has a legitimate interest in the outcome of the litigation. If it has no legitimate interest, this is a false conflict case and it will apply the law of another state. 2. Discuss whether the forum has a legitimate interest in the outcome of the litigation 3. State what state “wins” and the result D. Better Rule Approach: Under this approach the court looks at a variety of factors to determine what is the “better rule” of law, and then applies it. E. Federal courts/ diversity cases 1. If the forum is a federal district court sitting in diversity jurisdiction, the court will apply the conflict rules of state in which it is sitting. 2. If the case has been transferred from another district, the court will apply the conflicts rules of the transferor state IV. Specific Substantive Law Areas A. Torts 1. Vested Rights Approach a. Place of injury 2. Most significant relationship approach/ most significant facts a. place of injury b. place of conduct causing injury c. place of home state (domicile/incorporation/place of business) d. Place where the relationship between parties is centered 3. Intrafamily tort immunity – most significant fact is place of common domicile 4. multiple state torts – injury greatest in Π’s domicile

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B. Workers’ Compensation (there is no choice since there is istrative tribunal case and it will always apply its own workers’ compensation statute 1. worker can recover under more than one act but any prior recoveries will be credited against subsequent ones 2. worker can recover under the worker’s comp and in common law tort if the Δ has not been given by immunity under the act C. Contracts 1. Threshold Inquiry – Whether there is a valid choice of law provision – if so, it governs (look at reasons to invalidate :) a. state selected has no reasonable relationship with the contract b. no true mutual assent c. If invalidated, court uses its own choice of law approach 2. Vested Rights Approach/ vesting rules a. Contract formation problems: place of execution b. Contract performance problems: place of performance 3. Most Significant Relationship/ Most Significant Facts a. Place of negotiation b. place of execution c. places of performance d. place of home state e. place where subject matter is located f. Capacity governed by law of the place of execution D. Property - both restatements have same rules 1. Real property rule – situs (covers both inter vivos transactions and inheritance matters 2. Personal Property a. Inter vivos transactions i. Situs at the time of the relevant transaction b. Inheritance matters i. domicile of the decedent at time of death E. Family Law 1. Marriage – if valid where it is performed, recognized everywhere a. exception: domiciliaries temporarily leave state to avoid prohibitory rule (expresses a strong public policy) state will not recognize marriage 2. Divorce – no choice of law, forum always applies own law 3. Legitimacy a. children born out of wedlock are illegitimate b. If mother married child presumed legitimate c. validity of subsequent acts governed by father’s domicile V. Defenses to choice of law A. Foreign law is against forum’s public policy – almost never accepted B. Substance/procedure dichotomy – forum will use choice of law to determine which substantive law to apply. If issue is procedure it will apply its OWN law

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1. In issue is whether the (fill in applicable type of law) is substantive or procedural, for if it is procedural the forum will apply its own law. 2. Favorite – statute of limitations (procedural) a. Exceptions: i. time limit set by contract – contract will govern ii. borrowing statutes – forum is directed to apply shorter time limit, either forum’s or state where action arose iii. statute conditions substantive right (forum applies substantive law of another state after using choice of law) • if another state’s statute creates a substantive right, apply the entire statute including procedural provision b. Modern Trend: statute of limitations are treated as “substantive” matters to a basic choice of law analysis. (apply most significantly related state)

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