Glossary of Conflicts VA (FINAL)
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- Virginia's approach to conflicts is?
- Very traditional.
- What are the two types of domicile?
- Domicile by choice, AND
Domicile by operation of law
- What must be established to look at the domicile of choice test?
- -Legal capacity for domicile
-Different standard that capacity to enter a contract, etc.
-Only need to be able to fend for oneself
- What must be shown to establish domicile by choice?
- 1) Abandonment of state of domicile,
2) Physical presence in new state,
3) Intent to remain for the foreseeable future (indefinitely)
- For how long must a person be present in a new state to meet the "physical presence" element?
- Merely a very short time
- In determining the intent to remain element of domicile, what happens in VA when someone's words and actions conflict? In other words, what if words state no intent to remain but actions state an intent?
- Actions speak louder than words--actions win in VA.
Also, a person can have only ONE domicile.
- What happens if someone intends to move but dies along the way? Where is the person's domicile?
- The old state. A person keeps his domicile until it he acquires a new one.
- Does a person have domicile by choice if he does not have campacity?
- No. It would be domicile by operation of law.
- If a child is not old enough to fend for himself, where is he domiciled?
- GR: the domicile of his father
EX: if born out of wedlock, then the domicile of his mother
EX: if parents are separated or divorced, then the domicile of the parent in physical custody
- If a married couple lives apart, where is the woman's domicile?
- The one she chooses. Until recently, however, a married woman had the domicile of her husband.
- If someone's motive for changing states was to gain an advantage in litigation, where is his domicile?
- Wherever he intends to remain for the foreseeable future. Motive does not equal intent.
- What four-step approach should be used when answering conflicts questions?
- 1) Identify the issue (e.g., spousal immunity)
2) Characterize the substantive area of law (e.g., tort)
3) Identify the applicable conflict rule for the substantive area (e.g., place of hte wrong for torts)
4) If another state's law is to be applied, is an escape device applicable? (e.g., substance-procedure, penal law, public policy)
- What choice of law rules will a federal court sitting in diversity apply?
- Those of the state in which it sits
- What constitutional provisions limit the court's discretion in applying conflicts rules?
- 1) due process clause
2) full faith and credit clause
- What test is used for determining constitutional choice of law?
- State chosen must have significant contacts with the parties/subject matter of the litigation that give it a legitimate interest in seeing its law appplied.
Shorthand: significant contacts giving legitimate interest
- How difficult is it to meet the constitutional standard for choice of law?
- Not hard at all. On exam, it will most likely be satisfied.
- What two fact patterns do not meet the constitutional choice of law test?
- Using the forum state's choice of law will likely be unconstitutional under the following facts:
1) after the event in question, someone moves to the new state and that's the only contact
2) only contact with the state that has the litigation is that the suit was brought there
GENERALLY, it will be satisfied, however, and a question about contacts will generally be about personal jurisdiction not constitutional limits on choice of law.
- What are the three approaches to choice of law?
- 1) Vested rights (territorial) approach
2) Most significant relationship approach
3) Governmental interest analysis approach
- Which approach does Virginia take with choice of law questions?
- The traditional, vest rights approach. The Virginia Supreme Court has expressly rejected the other approaches but other states are moving in those directions.
- What is the vested rights approach?
- It says that the court should apply the law of the state where the plaintiff's rights vested.
- How can you determine where the plaintiff's rights vested in a vested interests question?
- It depends on the area of law. e.g., whether it's a tort question or a contract question
- In tort law, where are a plaintiff's rights vested for choice of law questions?
- GR: at the place of the wrong; the place where the last event necessary to make the actor liable for a tort takes place unless on of the TWO EXCEPTIONS is met
- What are the two exceptions to the "place of the wrong" rule in torts choice of law problems?
- 1) Where there is a rule regulating conduct--rule of the road--apply the law where the act took place (e.g., speeding car example with injury crossing state lines), OR
2) in defamation cases, apply the law of the place of publication
- What will courts first ask to determine what law to apply in contracts cases?
- A court will first look at the 3 replacement theories detailed below.
- What are the three questions to ask first to determine choice of law in contracts cases?
- 1) Did the parties validly choose the law to be applied?
2) Does a special UCC rule apply?
3) Does the rule of validation apply?
- How does a court determine whether parties to a contract validly chose the law of the contract?
- First, it depends on whether the law chosen determines construction or validity.
If construction --- the parties always choose.
If validity --- parties can still choose but must meet 3 conditions.
- What are the 3 conditions that must be met so that parties to a contract can validly choose the law to determine contract validity rather than simply construction?
- 1) Choice of law cannot be contrary to public policy in the state whose law would otherwise govern
2) Must be a reasonable relationship between the parties or the transaction and the forum
3) Contract must be free of duress and not be a contract of adhesion
- In determining choice of law for a contracts case, what is the second "replacement theory" courts will examine?
- If a UCC case, the forum (VA) law applies so long as the forum has a substantial relationship to the transaction.
- If none of the three "replacement theories" apply, whose law will govern in contract?
- Apply the First Restatement (Traditional) approach.
- What is the Traditional (First Restatement) approach in determining where contract rights vest?
- The general rule in contracts choice of law that applies as long as a replacement theory does not.
-The details of performance are governed by the law of the place of performance.
-For all other issues, apply the law of the place of contracting (e.g., formalities, interpretation, etc.)
- What law governs in the creation and transfer of interests in land?
- Law of the situs of the property governs everything
- What law governs creation and transfer of interests in tangible chattels?
- Law of the state where the chattel was located at the time of the transaction
- What law governs when it's an issue of the passing of property through intestate succession?
- Law of the state of the domicile where the deceased was domiciled at death
- What law governs in a personal property issue that falls under the UCC Art 9 and its rules?
- Law of the state of the debtor's residence
- What law governs the validity of a marriage?
- 1) If valid where performed, it's valid everywhere
2) If invalid where performed, it's invalid everywhere
3) If marriage is incestuous, polygamous, or in violation of some other prohibitory statute, Virginia will not recognize
- Name three defenses or escape devices to applying another state's law.
- 1) Law is procedural not substantive. VA law will govern the procedure.
2) Law is against public policy of the forum state.
3) Law is penal law.
If one of the three apply, then the forum state need not apply the other state's law
- Give four examples of laws that are procedural.
- 1) Burden of proof
2) Statutes of limitation (other than special/specific SOLs, borrowing statutes, and adverse possession, which are all considered substantive)
3) Rebuttable presumptions
- What is a borrowing statute?
- It is a an exception to the general rule that statutes of limitation are procedural and the forum state can disregard another state's law.
-Courts will borrow SOLs from the state where the COA arose when it's shorter than the forum state's SOL (avoids forum shopping)
- Name 7 substantive areas of law.
- 1) Contributory v. comparative negligence decision
3) Contribution among tortfeasors
4) Parole evidence rule
5) Statutes of frauds
6) Survival actions
7) Irrebuttable presumptions
- What law will a federal court sitting in diversity apply?
- The state's laws in which it sits.
- Will courts take judicial notice of a extrastate and foreign laws?
- 1) Courts will take judicial notice of a sister state's law
2) Courts will not take judicial notice of a foreign law--it is required to be offered as evidence and proven as a fact
- What happens if foreign law cannot be found and proved up as fact?
- Court has two options:
1) Dismiss the lawsuit, OR
2) Apply its own law (more and mroe courts are choosing this option)
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