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Conflict of Laws 2


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What's the first step in a conflicts analysis?
Determine whether the court deciding the case has proper jurisdiction.
What are the three problem areas of full faith and credit?
1. Have the full faith and credit requirements been met?
2. Are there any defenses?
3. What are the effects of recognizing a sister state judgment, and who will be bound by it?
What are the full faith and credit requirements?
1. There must have been proper jurisdiction in the rendering court.
2. The judgment must be on the merits.
3. The judgment must be final.
Whose law is examined to determine whether the ff&c requirements have been met?
The law of the state that RENDERED the judgment.
When is a judgment not on the merits? When are they on the merits?
NOT: lack of jurisdiction; plaintiff's lack of capacity to bring suit; misjoinder; improper venue; statute of limitations.

YES: default judgments; consent judgments (which do NOT give rise to collateral estoppel).
When is a judgment final?
When there are no further judicial actions required by the rendering court, to resolve the litigation.

A judgment that is modifiable as to future installmewnts might be final as to past due installments, and the latter can be enforced in a sister state.
What are sufficient defenses to ff&c?

What are insufficient defenses?
SUFFICIENT: 1. judgment is a penal judgment (punishes an offense against the public); and 2. judgment is subject to an equitable defense (judgment was obtained by extrinsic - but not intrinsic - fraud).

INSUFFICIENT: 1. Judgment is a tax judgment; 2. judgment is contrary to public policy of enforcing state; 3. rendering court made a mistake of law or fact.
What are the effects of recognizing sister state judgment?
Res judicata effects:
a. Merger of the plaintiff's cause of action into the judgment;
b. Bar against plaintiff suing on the same cause of action where it favored defendant.
c. Collateral estoppel as to an issue resolved in the first litigation as long as ISSUE WAS ACTUALLY LITIGATED AND IS ESSENTIAL TO THE FIRST SUIT'S OUTCOME.
If a judgment is entitled to ff&c, must it be enforced even if granted erroneously?
Yes (assuming the error does not otherwise qualify as a defense).
Is ff&c applicable to judgments of federal courts and administrative tribunals?
Yes. Applicable to federal courts by statute.
What is the principle when determining whether to recognize foreign country judgments?
Comity. This is voluntary and discretionary. Some states impose a reciprocity requirement.

Courts look to see 1. if the foreign court had jurisdiction and 2. if fair procedures were used.
When do divorce judgments receive ff&c?
When the jurisdictional requirement is met, i.e., when one of the spouses is domiciled in the state granting the divorce.
Who can attack the validity of another state's divorce decree?
Any interested person. But those estopped from attacking include: 1. parties to the prior proceedings; 2. privies of parties; and 3. persons who accept a foreign divorce and remarry in reliance thereon.
Are divorce judgments conclusive as to alimony, property rights and child custody?
Bilateral divorce is conclusive regarding these topics; ex parte serves only to grant the divorce.
Will states recognize foreign country divorce judgments?
Yes, if the domicile requirement is met.
How many domiciles may a person have?
What are the ways in which domicile may arise?
1. Choice
2. Operation of law.
What are the ways domicile by choice may arise?
1. Physical presence
2. Intention to be domiciled.

These are questions of fact. By the way,
1. A new domicile may be acquired in a very short time if the intent is present.
2. A person may change domicile with the intent of gaining advantage in litigation, as long as there is genuine intent.
3. A person retains her present domicile until she perfects the two part test (presence plus intent).
How does domicile by operation of law operate?
1. A child's domicile follows that of her custodial parents.
2. Unlike the old days, women can have a domicile of choice even though married.
3. Incompetents retain the domicile of their parents. If sane then insane, domicile is where they chose when sane.
4. Corporations are always domiciled in the state of incorporation.
What are the two types of limits on choice of law?
1. Constitutional limitations.
2. Statutory limitations.
Where do constitutional limitations arise?
Under the Due Process Clause and the Full Faith and Credit Clause. Generally speaking, if a forum state has any significant contacts with the parties or subject matter, it is NOT constitutionally bound to apply a foreign state's conflicting law by reason of Due Process or FF&C.
How do statutory limitations arise?
States may have their own statutory provisions directing which law to apply in a given case (lending, UCC, etc.).
What are the three analytical approaches to choice of law?
1. Vested rights (First Restatement):
a. Characterize the area of substantive law;
b. Determine the particular choice of law rule
c. localize the rule to be applied.
2. Most Significant Relationship
a. Consider the facts and contacts
b. Consider the policy-oriented principles (needs of interstate systems; relevant policies; expectations of parties; predictability and uniformity).
3. Governmental Interest
a. Assume the forum will apply its own law, unless requested to apply another.
b. If requested to apply another state's law, check for false conflict (forum has no interest).
c. If false conflict, apply law of interested state.
d. If true conflict, reconsider policies.
e. If forum has no great interest in applying its own law, dismiss for forum non conveniens. Otherwise, apply interested state's law.
f. If no interested states, apply law of forum.
How do you apply choice of law for torts, generally?
Look to the place of the injury.
How do you apply choice of law to torts liability?
1. 1st Restatement: place of the wrong.
2. 2nd Restatement: place with the most significant relationship to the occurence and the parties.
3. Governmental interset: Forum state, assuming it had a legitimate interest in applying its own law.
What law governs for vicarious liability?
1. 1st Restatement: place of the wrong.
2. 2nd Restatement: place with the most significant relationship.
What law governs for tort damages?
1. First Restatement: Place of the wrong.
2. Second Restatement: most significant relationship.
3. Governmental Interest: give special attention to plaintiff's domicile.
What state's law applies in determining contribution among tortfeasors?
1. 1st Restatement: place of the wrong.
2. 2nd Restatement: place most significantly related to the case; but if both tortfeasors are domiciled in the same place, this might be the most significantly related state.
What state's law applies for tort survival and abatement of actions?
1. First Restatement: place of the wrong.
2. 2nd Restatement: Most significant relationship.
What law applies for wrongful death?
1. First Restatement: place where wrong occurred.
2. Second Restatement: state with most significant relationships;
3. Governmental Interest: Forum state generally applies its own wrongful death statute.
What if a tort involves multiple states?
The law of the plaintiff's domicile is applied (assuming the injury occurred there).
What law applies to workers' compensation?
States try to apply their own statute where they have jurisdiction -- if there is a significant connection to their state.

If the parties chose a (reasonable) law, this will govern.
What law applies for contract actions?
1. If they picked a state, that prevails unless not reasonable or against public policy or no real choice (adhesion contracts).
2. If no express choice, then:
a. First Restatement: Place where contract was made controls validity and construction, and place where it was performed governs issues related to performance.
b. Secon Restatement: that, plus a bunch of special rules (real estate follows law of situs; insurance controlled by law of insured's domicile; loan contracts controlled by law of place where repayment is required). Plus, if other facts show a more significant relationship with another state, that other state is followed.
Which law governs whether a contract is valid?
1. 1st Restatement: capacity is governed by the law of teh place of contracting.
2. 2nd Restatement: capacity governed by the law of the place where the party whose capacity is in question is domiciled.
Which law governs performance?
1. First Restatement: place of performance.
2. 2nd Restatement: state with most significant relationship.
Which law governs property dispute?
Law of the situs, usu., although 2nd Restatement gives a little wiggle room in case another state has more contacts.
Which law governs personal property dispute?
Law of the situs at the time of the relevant transaction, although again, 2nd Restatement gives some wiggle room if another state has more significant relationships.
Which law governs trusts?
Law of the place where the trust is administered.
Which law governs inheritance?
What's the rule on marriage?
A marriage valid where celebrated is valid everywhere; a marriage void where celebrated is void everywhere.

Same sex marriages are not afforded ff&c.

Annulment is governed by the law of the place where the marriage was celebrated.
Which law for divorces?
The law of the plaintiff's domicile, i.e., the forum state.
Which law for attempts to legitimate (i.e., change a child's status from nonmarital to marial)?
Law of the father's domicile. Recent trend is to look at law of the child's domicile.
Which law for adoptions?
Local law.
Which law for corporations?
Matters of internal corporate affairs are governed by the law of the place of incorporation.
What arguments are there against application of a foreign law?
1. The law to be applied is procedural. (a forum state always applies its own procedural laws).
2. The law is against the forum state's public policy.
3. The law is a penal or tax law.
What is depecage?
In First Restatement, forum state applied the laws of a single state to all issues presented.

Modern approach is to look at each issue separately. Several different jurisdictions may be used, creating the situation known as depecage.
What if the foreign law's conflict rules refer the forum court back to its own law, or to a third state's law?
The prior case is known as 'remission,' the latter case is 'transmission.' This is all known as 'renvoi.'

Most states reject renvoi. Some 'accept' reference back and apply their own law.
Is state or federal law to be applied?
In several areas only federal courts have subject matter jurisdiction: antitrust, bankruptcy, patents. In some areas, state courts can enforce federal law concurrently with federal courts.
What do you do if a state court is asked to enforce a federal substantive right, but application of a state rule characterized as procedural would deny the federal right? (a "converse Erie" problem)
The state might be required to use the federal rule applicable to the situation in order to give effect to the federal policy.
What's the deal with federal courts applying state law?
There is no federal general common law. Under Erie, federal district courts apply the substantive law of the state in which the district court sits.

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