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Bar Prep

Additional Law Flashcards




Situations that Create Conflict Issues
Conflicts of law will arise when there are multiple jurisdictions with potential interests in the transaction or dispute of the case.  There are four testing areas for the Conflicts:  (1) Jurisdiction—not heavily tested, or if it is, it falls under Civ Pro; (2) Domicile—not tested much on its own, but will play a role in other Conflicts areas; (3) Choice of Law—this is the most heavily tested area of Conflicts; and (4) Recognition of Judgments—the second most heavily tested area in Conflicts.
Recognizing Conflict Issues

A basic Conflicts case reading method is to ask:

1.  Where is the case being litigated?  (the forum)

2.  Who are the interested parties?  (What jurisdictions are interested?)

3.  What are the different outcomes of the different jurisdictions?

4.  How is the law characterized?  (i.e., tort, contract, family law, property, etc.)
Full Faith and Credit
Jurisdiction:  for Full Faith and Credit to apply, there must be (1) proper jurisdiction of the rendering court; (2) judgment on the merits; and (3) the judgment must be final.  For Recognition of Judgments, the jurisdiction issue is always considered.
Domicile:  An individual may only have one domicile.  Domicile may arise by (1) choice; or (2) operation of law.
Domicile by Choice

A.  Domicile by choice:  two requirements for domicile by choice:

    1.  physical presence; and

    2.  intention to be domiciled (do not confuse intent with motive—motive is irrelevant, as long as there is intent

B.  Common issues tested on for domicile by choice:

    1.  a new domicile may be acquired in a very short time, if the requisite intent exists

   2.  former domicile is retained until the two-part test is perfected elsewhere (e.g. if someone is moving from ID to CA and dies in a car crash in NV, ID is the domicile of the decedent, because physical presence was never established in CA)
Domicile by Operation of Law

Domicile by Operation of Law:  this is domicile assigned to one who lacks “domicile capacity”

1.  infants:  will be assigned the domicile of their parents.  If parents are divorced, domicile lies with the custodial parent.

2.  mental incompetents:  assigned the domicile of their parents.  If person becomes incompetent after having acquired domicile by choice, they retain the domicile of choice.
Choice Of Law
Choice of Law:  three analytical approaches, (1) vested rights approach of the 1st Restatement; (2) most significant interest approach of the 2nd Restatement; and (3) governmental interest approach.  Unless the call of the question limits the analysis to one of the three, discuss the implications of all three.
Vested Rights

Vested Rights:  this is the traditional approach, and has a four-step process

1.  Characterize the substantive area of the law involved (i.e. torts, K, family law, etc.)  NOTE:  it may be possible to use different characterizations for one fact pattern.  E.g., if a car is rented and wrecks due to defective breaks, it would implicate tort and contract law, and potentially have a different outcome even under the vested rights approach.

2.  State the appropriate vesting rule:  helpful mnemonic PISSED

     a.  P Performance (contract—performance issues of the K are governed by the law of the place of performance of the K)

     b.  I  Injury (torts—the law of the place of the injury governs)

     c.  S Situs (real property—the law of the place of the inter vivos transaction and inheritance matters governs)

     d.  S Situs at time of relevant transaction (personal property—law of the situs of the relevant transaction governs for inter vivos transfers of personal property)

    e.  E Execution (contract—formation issues with K are governed by the law of the place of execution of the K)

     f.  D Decedent’s domicile at date of death (personal property—law of the domicile where decedent dies governs for inheritance issues)

3.  State which jurisdiction “wins” i.e. where the rights vest.  (“The injury occurred in ID, therefore ID law applies.”)

4.  State the result.  (“Under ID law, there is comparative negligence, so Plaintiff can recover some damages.”)
Most Significant Relationship Approach

Most Significant Relationship Approach:  under this approach, the court will apply the law of the state which is most significantly related to the outcome of the litigation.  To determine this, the court will look at (1) the connecting facts; and (2) certain policy principles.  (Although there is specific list for connecting facts and policies, just mention the preceding sentence for this approach, and then use common sense to list the facts and policy considerations.)

1.  connecting facts:  generally, where they occurred and what they are 

2.  policy principles:  this is a specific list, but don’t worry about memorizing it, just use common sense:

a.  needs of interstate systems; relevant policies of the forum; policies and interests of other jurisdictions; expectations of parties; basic policies; underlying substantive law; predictability and uniformity of result; ease of determination of foreign law


Most Significant Relation


Considerations for Tort Issues


Considerations for Tort issues

a.  connecting facts:

i.  place of injury (note:  this is the most significant fact)

ii.  place of conduct causing injury

iii.  place of domicile, incorporation, and/or business

iv.  place where the relationship, if any, between the parties is centered

b.  policy principles:  see the list above

Most Significant Relationship


Considerations for Contract Issues


Consideration for K issues (note:  if place of neg. and perf. is the same, that place is likely the most significantly related.

a.  connecting facts:

i.  place of negotiation

ii.  place of execution

iii.  place of performance

iv.  place of domicile, incorporation, and/or business

v.  place where the subject matter, if any, is located

b.  policy principles:  see the list above

Most significant Relationship


Considerations for Property Issues

Consideration for Property issues:  the 2nd Rest. follows the same vesting rule as the 1st Rest. for property issues
Government Interest Approach
Government Interest Approach:  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, it is a “false conflict” and it will apply the law of another state. For the exam, discuss whether the forum has a legitimate interest, and if not, discuss the interests of other states.  The practical effect of this is that you will almost always apply the law of the forum.  State who wins and what result.
Choice of Law Issues for Family Law

Choice of Law for Family Law issues:  no real distinction between the three choice of law approaches in this area

1.  Marriage:  general rule—a marriage valid where consummated, is valid everywhere       

    a.  exception:  where domiciliaries of one state temporarily leave that state and go elsewhere to get married in order to avoid a prohibitory rule of their state of domicile, their state of domicile is not required to recognize their marriage

    i.  a “prohibitory rule” is one that expresses a strong public policy

    b.  DOMA (Defense of Marriage Act) is another exception to this rule

2.  Divorce:  there are no choice of law issues.  The forum always applies its own divorce laws because one of the parties must be domiciled there.

3.  Legitimacy:  the validity of subsequent acts of legitimation of a child are governed by the law of the father’s domicile.  The modern trend holds that it is valid if sufficient under the law of either the father’s or child’s domicile.

Defenses to Choice of Law

Defenses to Choice of Law

1.  Substance/Procedure dichotomy defense:  answer like this, “At issue is whether the statute of limitation (or some other type of law from the facts) is substantive or procedural, for if it is procedural, the forum will apply its own law.

2.  Statutory limitations:  these are either federal statutes directing the court as to what it must or cannot apply, (e.g. borrowing statutes of limitation, federal patent cases (can only be in federal courts).

      a.  borrowing statutes of limitation are the most common in the exam:  under these, the forum is directed to apply the “shorter” time limit (the forum’s or that of the state where the cause of action arose). 

      b.  if there is no borrowing statute of limitation or statute of limitation set by contract, apply the following rules:

        i.  general rule:  SOL are treated as procedural, and the forum state law should apply

        ii.  modern trend:  SOL are treated as “substantive” matters subject to a basic choice of law analysis.

     iii.  if confronted with this issue, and the call of the question doesn’t narrow the choice, discuss both rules
Recognition fo Judgments
Recognition of Judgments:  on the exam, refer to the state handing down judgment as the “rendering state,” and the state called upon to recognize and enforce it as the “recognizing state.”
Recognition of Sister State Judgments
Recognition of Sister State Judgments:  ask “is it entitled to Full Faith and Credit?”  FF&C requires three steps:
1.  Jurisdiction must have been proper in the rendering state court
2.  Judgment must be on the merits (note: a “default judgment” is regarded as on the merits; SOL dismissal is not)
3.  Judgment must be final (to the extent a judgment is modifiable, it is not final, and not entitled to FF&C, however, most states will still recognize the judgment based on comity principles.

Defenses to Full Faith and Credit
4.  Defenses to Full Faith and Credit:  there are good defenses (valid) and bad defenses (invalid)
   a.  good defenses:
     i.  Judgment is penal:  one which punishes an offense against the public (note: Plaintiff must be Gov. to be penal)
     ii.  Judgment was procured by extrinsic fraud.  Intrinsic fraud is not a good defense.  If fraud could have been dealt with during earlier trial (e.g. perjury), it’s intrinsic; if not (e.g. bribing the judge), it’s extrinsic
   b.  bad defenses:
      i.  It is a tax judgment.  Tax judgments are enforceable.  They are not considered penal.
     ii.  The judgment is contrary to state public policy.  This defense is usually a loser.
    iii.  Mistakes of law or fact were made.  In that case, it should have been appealed, not whined about now.
Recognition fo Foreign Country Judgments
Recognition of Foreign Country Judgments:  often recognized based on comity or on the same basis as sister state judgments.  However, the court will also usually look to see if our due process standards were satisfied both in terms of (1) whether jurisdiction was proper; and (2) whether fair procedures were used during earlier litigation.
Recognition of Family Law Judgments

Recognition of Family Law Judgments:  the primary focus is on whether jurisdiction was proper

1.  Divorce decrees:  requires a two step analysis—

     a.  determine whether jurisdiction was proper:  at least one spouse must be domiciled in the rendering state

       i.  ex parte divorce:  one spouse is domiciled in rendering state.  Other spouse is not subject to personal jurisdiction there.  Jurisdiction is valid.

       ii.  bilateral divorce:  at least one spouse (but maybe both) is domiciled in rendering state.  Both spouses are subject to personal jurisdiction there.  Jurisdiction is valid.

      iii.  consent divorce:  both spouses are subject to personal jurisdiction in the rendering state.  Neither is domiciled there (e.g., a couple goes to NV to divorce).  Jurisdiction not valid.

    b.  determine if the person attacking jurisdiction is estopped from doing so.  Persons so estopped include:  (1) persons subject to personal jurisdiction in prior proceedings; (2) persons who played a meaningful role in prior proceedings; (3) persons who are in privity with parties in prior proceedings; (4) persons remarrying on reliance to prior proceed.

2.  Alimony and Custody awards:  determine if jurisdiction was proper.  For both alimony and custody, jurisdiction was proper if was personal juris. over the spouse whose property or custody rights were at issue.  In addition, for custody awards, jurisdiction is proper if the rendering court is that of their child’s home state.
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