Introduction

CONFLICTS OF LAW

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Conflicts of laws concerns issues that arise from a dispute having contact with more than one sovereign.
Scope

Jurisdiction Over the Person or Property > See Civ Pro Notes
Choice of Law

Interstate (and International) Choice of Law > Horizontal conflict when the case touches two or more equal
sovereigns.

Choosing b/t Federal and State Law > Vertical conflict; see Erie Doctrine and supremacy clause in Civ Pro Notes

Recognition of Foreign Judgments > what recognition will the state give a judgment entered by a court in another
state/country

Choice of Law Introduction

Court must decide what states law applies when a case involves parties from or activity in more than one state.
Generally > choice of law doctrine of the state in which the court sits.

Three different theories: (1) The Vested Rights Approach (First Restatement); (2) The Interest Analysis Approach; (3)
The Most Significant Relationship Approach (Second Restatement)

Choice of Law Theories (analytical approaches)

The Vested Rights Approach

Traditional approach, a.k.a. Territorial Approach

Vested Rights Concept: Law applies within territorial boundaries > apply the laws of the place where the parties
rights vested, i.e., where the last event occurred that was necessary to create the cause of action alleged. Whatever state
that took place in, what law applies
Application (3 step process):

1) Characterize the Area of Law: determine kind of substantive claim being asserted and whether the issue one of
substance or procedure.
2) Find the Applicable Choice of Law Rule:

Torts: law of the place where the wrong (injury) occurred (lex loci delicti)

Contracts: law of the place where the contract was made (or was to be performed)
Procedure: Law of the forum

3) Apply the Rule to Identify the State Whose Law Governs the Issue
The Interest Analysis (Government Interest) Approach

Interest Analysis Concept: Makes choice-of-law determination on each issue. Forum will apply its own law but at the
request of a party will examine its policies and the policies of other affect states to determine whose law should apply.
Analyzes the policies behind the conflicting laws.
Application:

1) Identify the policies that underlie the conflicting laws > what are they trying to accomplish?

2) Identify the state interests > determine whether each laws application in the case at hand would serve the policies
that underlie that law; this inquiry includes a determination whether each states policy extends to the circumstances of
the particular case.
a) identify false conflicts > apply the only interested states law.
b) resolve true conflicts > apply forum law

c) disinterested forum > apply either (1) the law that is closeted to forums law or (2) the better law of the
other potentially applicable forum
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d) unprovided-for cases > apply forum law when none of the states have an interest in having their law apply.

The Most Significant Relationship Approach

This is the most common approach.

The Concept: apply the law of the state which has the most significant relationship to the occurrence or transaction
and the parties.

Application: Determine which states have the most significant relationship to the parties, occurrence, transaction by
applying the following controlling principles and relevant contacts:
Controlling Principles

(1) the needs of the interstate and international judicial systems > forget this one, no one, including the courts.,
know what this means
(2) the relevant policies of the forum

(3) the relevant policies of other interested states and relative interests of those states in the determination of the
particular issue;
(4) the protection of justified expectations > important sometimes, esp. in contracts & corp. issues
(5) the basic policies underlying the particular field of law

(6) certainty, predictability and uniformity of result > we prefer to provide certainty and predictability
(7) the ease of determining any applying the law chosen.
Relevant Contacts

Torts: place where injury/conduct occurred, place of the parties domicile, residence, place of incorporation, and
place of business, and place where the parties relationship is created.

Contract: places of contracting, negotiation, and performance; location of the subject matter of the contract; and
place of parties domicile, residence, place of incorporation, and place of business.

Federal District Courts > in diversity cases, apply the choice-of-law doctrine of the state where the federal
court sits.; in transferred cases, apply the choice-of-law doctrine of the transferor ct. i.e., where the case was originally
filed, assuming it was a proper venue to begin with.

Constitutional Limits on Choice of Law Decisions

Due Process

Full Faith and Credit

Single Modern Test: application of a given states law is constitution if: (1) that state has significant contacts with the
parties and the occurrence/transaction at issue; and (2) that state has an interest in the events and the outcome of the
action.

Choice of Law Doctrine for Specific Areas of Substantive Law

Torts > most likely on bar exam

Vested Rights > physical place of the wrong

Second Restatement & Interest Analysis > ID the state having the most significant relationship to the case by: (1)
analyzing the applicable policies & state interests and (2) absent a false conflict, default to the place (state) of the wrong
Application:

Laws Regulating Conduct: always apply the law of the place of the wrong
Laws Allocating Loss: Apply the appropriate choice of law approach
Contracts

Contractual Choice of Law Provisions > contract provides for what law governs > determine whether that clause
is valid and enforceable:
Issues the Parties Could Have Resolved by Explicit Contractual Provisions > gap-fillers and terms that deal
w/construction, interpretation, nature and quality of performance, and other matters that generally can be controlled by
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the parties.

Choice-of-Law Provisions are always enforceable

Issues the Parties Could Not Have Resolved by Explicitly Contractual Provision > issues of validity, capacity, and
other matters beyond the parties freedom to contract.
Choice-of-Law provision is enforceable UNLESS either: (1) the chosen state has no relationship to the parties or the
transaction; or (2) the chosen law is contrary to the fundamental public policy of the forum state (or a state that has a
greater interest in the issue)
Choice of Contract Law (Absent a Valid Choice of Law Clause)
Vested Rights Approach

Issues Relating to a contractss existence or validity> apply the law of the place where contract was made (usually
the place where the last event occurred that made the contract binding.
Issues Relating to Performance > apply the law of the place of performance

Contracts Affecting Title to Land > apply the law of the state where the land is located.
Second Restatement (Most Significant Relationship)

ID the state w/Most Significant Relationship to the issue by > (1) ID states having relevant contacts (place of
contracting, negotiation, and performance; location of the subject of the K; and parties home states); (2) Analyze the
applicable policies & state interest; (3) analyze other relevant 2d Restatement factors: (a) protecting justified
expectations, (b) certainty, predictability and uniformity of result, (4) if answer is ambiguous, then apply the default
rule: the place (state) where K was entered or performed
Procedure

General Rule:

Vested Rights > Forum Applies its own laws on matters of procedure.

Procedural Matters > civil practice rules, burdens of proof, and direct action statutes
Substantive Matters > statutes of fraud and the parole evidence rule

Second Restatement & Interest Analysis > Analyze policies & interests and ID the state having the most significant
relationship to the issue.
Statutes of Limitation

Borrowing Statutes > generally provide that the shorter of two potentially applicable statutes of limitation apply
Choosing the Applicable SOL when the Borrowing Statute Does Not Apply:

Vested Rights Rule > SOL are matters of procedure so the forum always applies its own SOL (absent a applicable
borrowing statute)
Interest Analysis > do appropriate analysis

Second Restatement > the forum state will generally have a greater relationship
Real Property

Vested Rights Rule > Apply the law of the place where the land is located. Almost every state sticks to this rule for
matters of real property (law of situs)
Second Restatement & Interest Analysis > look at policies of conflicting laws, do they have an interest, almost
always that will lead you back to the situs b/c the place where the land was located is more significant interest.
Conveyance of Personal Property - other than upon death or divorce

Vested Rights Rule > apply the law of the place where the property is situated at the time of the pertinent transaction
(i.e., the law of the situs)
Second Restatement and Interest Analysis > Treat it like all other places. What are the laws, policies, does each state
have an interest in having those policies apply? Will usually lead you back to situs anyways. NOTE: usually governed
by UCC.
Decedents Estates

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Real Property

Vested Rights > apply the law of the place where the land is located, whether devolution of the property is by will or
intestate succession.
Second Restatement & Interest Analysis > respective laws, policies, interest? almost always the state where the land
is located is going to apply.
Personal Property

Vested Rights > Apply the law of the DECEDENTS DOMICILE AT THE TIME OF DEATH, whether she dies
intestate or with a will
Second Restatement & Interest Analysis > run through interests/policies/etc.
Corporations

Internal Affairs Doctrine

Vested Rights Rule > Apply the law of the state of incorporation to issues relating to the corporations creation, its
dissolution, its internal affairs, and the liability of its officers and directors to shareholders
2d Restatement & Interest Analysis > yield the same result, look at conflicting laws, policies and states interest.

External Relationships a corporations relationships with 3d parties are governed by general choice-of-law rules.
Marriages

General Rule > a marriage that is valid where it is celebrated (created) is valid everywhere

Public Policy Exception > If a marriage would violate a prohibitory rue (expressly disallows certain marriages) of a
state then it may not be recognized even though it is valid where performed.
DOMA does not require states to give full faith and credit to same sex marriages celebrated in other states
Principles That May Preclude Application of Foreign Law

Public Policy > a court may decline application of another states law if it violates the forum states fundamental
public policy.
Penal and Tax Laws

Vested Rights > state does not apply other states law

2d Restatement > allows the enforcement of penal and tax laws of other states

Domicile

Concept > ones true, fixed home

Rule > Domicile serves many purpose and may appear on the exam in several ways

Choice of Law for Decedents Estate > law of decedents domicile governs passage of personal property whether by
will or intestate succession

Subject Matter Jurisdiction for Divorce > need to be domiciled (only one spouse) in a state to be granted a divorce,
however, if court wants to enforce property settlement, alimony, or child support without obtaining personal jurisdiction
over other spouse.
Determining Domicile

Domicile of Choice: the domicile of a person having legal capacity is the place of the individuals chosen home.

Requirements: (1) physical presences in a place; and (2) intent to remain for the foreseeable future (i.e., indefinitely)
Domicile by Operation of Law: If a person lacks legal capacity, a domicile will be assigned by the operation of law.
Children > domiciled where parents/legal custodial guardians are domiciled

Incompetents > (1) from birth, retain the domicile of their parents (2) previously had capacity and established a
domicile of choice are deemed to retain their domicile of choice.

Recognition of Foreign Judgments

Judgments of the Courts of Sister American States

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The Full Faith and Credit Clause (FFC) > requires the courts of a state to give the same effect to the judgment of a
sister states court that the rendering court would give it
Exceptions

Lack of jurisdiction > FFC not required if court 1 lacked jurisdiction, but if jurisdiction was already litigated in court
1, then the party that litigated in court 1 cannot re-litigate that issue in court 2.
Lack of finality > FFC only applies to final judgments of the court that entered the judgment, equitable decrees
(injunctions) are never final

Judgment was not on the merits > Procedural grounds are never on the merits so parties can re-litigate in another
forum
Defenses to Enforcement

Penal Judgments > not enforced, a penal judgment is one imposed as a punishment from an offense against the
public.
Extrinsic Fraud

Federal District Courts and State Courts

FFC does not apply, but federal statutes require similar recognition of judgments between state and federal courts
Judgements of Foreign Countries

State Law Governs (Absent an applicable treaty)

Comity > most states will still enforce foreign country judgments like FFC, but requires that foreign ct had
jurisdiction (personal/subject matter) and they used regular and just proceedings.
Some state require reciprocity, but not all require it.

Uniform Foreign Money-Judgments Recognition Act > treats foreign countrys money judgments much like sister
state judgments, but it does not apply to judgments for taxes, penal judgments, or judgments for alimony or support.
Family Law Judgments

Judgment of Divorce > in order to give FFC, rendering ct must have had subject matter jurisdiction (one spouse
was domiciled)
Judgment for Alimony and Property Rights > to receive full faith and credit, the rending court must have
personal jurisdiction over the spouse whose rights are being determined

Child Custody Decrees > Uniform Child Custody Acts provide that a states custody decree will be recognized
if that state qualifies as a childs home state
The Divisible Divorce Doctrine > If a decree has some parts that are valid and must be recognized and some
parts that are not, then you recognize the good parts and ignore the bad

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