# Conflicts of Law Outline **I. CHOICE OF LAW** - **A. INTRODUCTION** - **1. Choice of Law issues arise when the laws of more than one jurisdiction arguably apply to a dispute.** - **2. Terminology** - **Forum:** The state in which the lawsuit is filed. - **Forum Law:** The law of the state where the lawsuit is filed. - **Foreign Law:** The law of a jurisdiction other than the forum state. - **3. Choice of Law in Federal Court:** In a federal case, apply the choice of law rules of the state where the court sits. - This is known as the **Klaxon Rule**. - **Exception:** If the case was transferred from a federal court in another state, apply the choice of law rules of the original court. - **B. GENERAL APPROACHES TO CHOICE OF LAW** - **1. Traditional Approach (First Restatement)** - **Focus:** Where the legally significant event that created the right occurred. - **Process:** - Identify the legally significant event. - Determine where that event occurred. - Apply the law of that place. - **Example:** A car accident occurs in State A. A lawsuit is filed in State B. The traditional approach would apply the law of State A because that is where the accident occurred. - **2. Governmental Interest Analysis** - **Focus:** Which state has the greatest interest in applying its law to the dispute. - **Process:** - Identify the policies behind the competing state laws. - Determine which states have a legitimate interest in applying their laws. - If only one state has an interest, apply that state's law. This is a "**false conflict**." - If more than one state has an interest, this is a "**true conflict**." The court will usually apply the law of the forum state. - If no state has an interest, apply the law of the forum state. - **Types of Laws:** - **Conduct-Regulating Laws:** Laws designed to regulate conduct. - **Loss-Shifting Laws:** Laws that determine who can or cannot be liable. - **3. Most Significant Relationship Test (Second Restatement)** - **Focus:** Which state has the most significant relationship to the issue. - **Process:** - Consider seven guiding principles to determine the state with the most significant relationship. - Consider the connecting factors related to the specific legal issue. - Apply the law of the state with the most significant relationship. - **Guiding Principles:** - Promoting the relevant policies of the forum and other interested states. - Protecting justified expectations. - Advancing certainty, uniformity, predictability, and simplicity. - **Tie Breaker:** If no state has a more significant relationship, courts apply forum law. - **C. SPECIAL ISSUES** - **1. Depecage:** The application of different states' laws to different issues in the same case. - **2. Renvoi:** When the court applies the whole law of another state, including that state's choice of law rules. - **Accepting the Renvoi:** Applying the other state's choice of law rules. - **Rejecting the Renvoi:** Ignoring the other state's choice of law rules and applying the other state's substantive law directly. - **Generally Rejected:** Except for issues involving property rights in land, courts generally reject renvoi. - **D. DEFENSES AGAINST APPLICATION OF FOREIGN LAW** - **1. Procedural vs. Substantive:** Forum law always governs procedural issues. - **Substantive Laws:** Regulate behavior outside of court. - **Procedural Laws:** Regulate behavior inside court. - **2. Public Policy Exception:** Courts may refuse to apply foreign law that violates the forum's strong public policy. - **Narrow Defense:** Applies only to egregious violations. - **Not Applicable to Defenses:** Can only be used to reject a foreign cause of action, not a foreign defense. - **3. Penal Law Exception:** Courts will not enforce the penal laws of another state. - **Penal Laws:** Laws that punish an offense against the public. - **Tax Laws:** Not considered penal laws. - **E. CONSTITUTIONAL LIMITATIONS** - **1. Due Process:** Choice of law must not be arbitrary or fundamentally unfair. - **Requirement:** The state must have significant contacts with the dispute to apply its law. - **2. Full Faith and Credit:** A state must recognize and enforce the judgments of other states. - **Limitations:** - Must be a final judgment. - Must be on the merits. - Rendering court must have had proper jurisdiction. - **No Public Policy Exception:** States cannot refuse to enforce other states' judgments based on public policy. - **Last in Time Rule:** If there are conflicting judgments, the most recent judgment prevails. - **3. Privileges and Immunities Clause:** Prevents states from discriminating against citizens of other states. **II. SPECIFIC AREAS OF LAW** - **A. TORTS** - **1. Traditional Approach:** Apply the law of the place where the injury occurred. - **2. Governmental Interest Analysis:** Apply the law of the state with the most significant interest in the outcome. - **3. Second Restatement:** Apply the law of the state with the most significant relationship to the occurrence and the parties. - **Consider these contacts:** - Place of injury. - Place where the conduct causing injury occurred. - Domicile, residence, or place of business of the parties. - Place where the relationship between the parties is centered. - **Presumption:** The law of the place of injury will usually be applied, but can be overcome. - **Multiple States:** If the injury occurs in multiple states, apply the law of the plaintiff's domicile if the injury also occurred there. - **B. CONTRACTS** - **1. Choice of Law Clause:** If the contract contains a valid and enforceable choice of law clause, that clause will govern. - **Exception:** Validity of a contract cannot be resolved solely by the choice of law provision. - **2. Validity of a Contract:** - **Second Restatement:** Parties can choose the law governing validity if: - The chosen state has a substantial relationship to the parties or the transaction; or - There is some other reasonable basis for the choice. - **Public Policy Exception:** Courts may ignore the choice of law provision if it would violate a fundamental policy of the state with the most significant relationship to the issue. - **3. Traditional Approach:** The law of the place of contracting governs issues of contract formation, interpretation, and validity. - **Place of Contracting:** Where the last act necessary to make the contract binding occurred. - **Performance Issues:** Governed by the law of the place of performance. - **4. Second Restatement:** Determine the state with the most significant relationship to the contract. - **Consider these contacts:** - Place of contracting, negotiation, and performance. - Location of the subject matter of the contract. - Domicile, residence, place of incorporation, or place of business of the parties. - **Presumption:** If the location of negotiation and performance are the same, the law of that state applies. - **C. PROPERTY** - **1. Types of Property** - **Real Property (Immovables):** Land and interests in land. - **Personal Property (Movables):** All property other than land. - **Tangible:** Property that can be touched (e.g., cars, furniture). - **Intangible:** Property that cannot be touched (e.g., stocks, patents). - **2. Real Property:** All three approaches generally apply the law of the situs (where the property is located). - **Second Restatement:** Still considers seven guiding principles, with a strong presumption in favor of the law of the situs. - **Land Incidental to a Contract:** If the land is merely incidental to the contract, apply the contracts approach. - **3. Personal Property:** - **Tangible Property:** - **UCC:** Apply the UCC, which allows parties to choose the applicable law. - **No UCC:** First and Second Restatement apply the law of the situs at the time of the transaction. - **Intangible Property:** - **First Restatement:** Law of the state where the property was created. - **Second Restatement:** Considers the seven guiding factors. - **4. Succession of Property at Death:** - **Immovable Property:** Law of the situs. - **Movable Property:** Law of the decedent's domicile at the time of death. - **Choice of Law Clause:** Many states will enforce a choice of law clause in a will or trust. - **Validity:** If a will or trust is valid under the law where it was made, courts generally enforce it. - **D. CORPORATIONS** - **1. Internal Affairs:** Governed by the law of the state of incorporation. - **2. External Relations:** Governed by the choice of law rules of the area of law involved. - **Second Restatement Contacts:** Place of incorporation and principal place of business. - **E. FAMILY LAW** - **1. Marriage** - **Traditional Approach:** Valid where celebrated, unless it violates a strong public policy of the domicile of either party. - **First Restatement:** Distinguishes between validity and incidents of marriage. - **Validity:** Governed by the law of the place of celebration. - **Incidents:** Determined by the law of the place where they are sought to be exercised. - **Second Restatement:** Valid where celebrated, unless it violates the public policy of the state with the most significant relationship to the parties at the time of marriage. - **2. Marital Property** - **Immovable Property:** Law of the situs. - **Movable Property:** Law of the state where the couple was domiciled at the time of acquisition. - **3. Divorce** - **Jurisdiction Requirement:** At least one spouse must be domiciled in the state granting the divorce. - **Bilateral Divorce:** Personal jurisdiction over both spouses. - Entitled to full faith and credit. - **Ex Parte Divorce:** Personal jurisdiction over only one spouse. - Entitled to full faith and credit for the divorce decree itself. - Other orders (property, alimony, etc.) are valid only if the court had personal jurisdiction over both spouses. - **Estoppel:** An interested party may challenge the validity of a divorce, except for parties, privies, those remarrying in reliance, or strangers with no standing. - **4. Child Custody and Support** - **UCCJEA:** Governs jurisdiction and enforcement of child custody and support orders. - **Exclusive Jurisdiction:** One state has exclusive jurisdiction to make initial custody decisions. - **Modification:** Only possible if the original state no longer has jurisdiction or the new state meets the requirements for exclusive jurisdiction. - **5. Foreign Country Judgments** - **Not Subject to Full Faith and Credit:** Enforced under comity. - **Comity:** Recognition based on mutual respect among nations. - **Uniform Foreign Money Judgment Recognition Act:** - Enforces foreign money judgments in the same way as sister state judgments. - Does not cover non-money judgments, but they may be enforced under comity. **III. IMPORTANT CONCEPTS TO KNOW FOR THE UBE** - **Domicile** - **Definition:** The place where a person has their true, fixed, and permanent home, and to which they intend to return whenever absent. - **Importance:** Determines which state's laws apply to certain issues, such as divorce and probate. - **Types:** - **Domicile by Choice:** Acquired by physical presence in a state and the intent to remain indefinitely. - **Proof of Intent:** Owning real estate, voting, paying taxes, banking, vehicle registration. - **Domicile by Operation of Law:** Applies to those lacking legal capacity (minors, incompetents). - **Minors:** Domicile of custodial parent(s). - **Incompetents:** Retain domicile from before incompetency. - **Corporations:** Domiciled in the state of incorporation. - **Continuity:** Presumed to continue until a new one is acquired. - **Change:** Requires physical presence in a new place and intent to make it home. - **Substance vs. Procedure** - **General Rule:** Forum law governs procedural rules, foreign law governs substantive rules. - **Statute of Limitations:** Generally procedural. - **Exception:** If part of the right, not just the remedy, it's substantive. - **Rules of Evidence:** Generally procedural. - **Exception:** If outcome determinative, it's substantive. - **Burden of Proof:** Generally procedural. - **Presumptions:** - **Rebuttable:** Procedural. - **Conclusive:** Substantive. - **Parol Evidence Rule:** Substantive. - **Statute of Frauds:** Substantive. - **Damages:** - **First Restatement:** Procedural. - **Second Restatement:** Governed by the law of the state with the most significant relationship. - **Full Faith and Credit** - **Definition:** Constitutional requirement that states must enforce the final judgments of other states. - **Requirements for Enforcement:** - Final judgment. - On the merits. - Rendering court had proper jurisdiction. - **Defenses:** - Lack of jurisdiction in rendering court. - Judgment procured by fraud. - Judgment not final. - Judgment not on the merits. - **Comity** - **Definition:** The principle of recognizing and enforcing the laws and judicial decisions of other countries, based on mutual respect. **Application:** Used to enforce judgments from foreign countries that are not subject to the Full Faith and Credit Clause.