Conflict of Laws

Card Set Information

Author:
richardlpeterson
ID:
126373
Filename:
Conflict of Laws
Updated:
2012-01-07 15:23:26
Tags:
barbri
Folders:

Description:
Conflict of Laws
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user richardlpeterson on FreezingBlue Flashcards. What would you like to do?


  1. Domicile
    Situations
    • 1. Domicile of the decedent is used to choose the law to be applied to determine intestate succession of personal property
    • 2. Domicile at death determines which state gest estate
    • 3. Domicile of an individual gives SMJ for a divorce
  2. Domicile of Choice
    • Legal capacity is needed to make a domicile of choice.
    • Standard: the ability to fend for yourself.
    • Test:
    • 1. physical presence in that state
    • 2. the intent to remain for the foreseeable future (indefinitely)
    • Actions speak louder than words.
    • Can have only one domicile; primary residence is domicile.
    • Once obtained, kep until another is acquired.
    • Motive for going to a state to acquire domicile is irrelevant.
  3. Domicile by Operation of Law
    • Key situation: domicile of a child or mental incompetent
    • Rules:
    • 1. If a person does not have legal capacity to get a domicile of choice, the child or mental incompetent will have the domicile of that person's parents
    • 2. If parents are divorced, domicile is that of the parent who has physical custody
    • 3. If a person had a validly acquired domicile before becoming mentally incompetent, that person will retain the domicile of choice during the priod of incompetency
  4. Rendering state
    the state handing down the judgment
  5. Recognizing state
    the state called upon to recognize and enforce the judgment; aka forum state
  6. Situations for Recognition and Enforcement of Judgments
    • 1. Judgments rendered by a sister state court
    • 2. Judgments rendered by a foreign country court
  7. Full Faith and Credit Requirements
    Sister States
    • 1. valid jurisdiction in the rendering court over both parties and the subject matter of the litigation
    • -"one attack" against validity of jurisdiction rule: either in rendering or recognizing court; rendering court's decision entitled to full faith and credit if fully/fairly litigated, even if wrong
    • 2. the judgment must be a final judgment
    • -if modifiable, then not final, BUT usually enforced on principles of comity (e.g. future alimony & future child support)
    • -judgments on appeal are not final judgments unless rendering state would allow enforcement of the judgment pending appeal
    • 3. The judgment must have been rendered on the merits
    • -typical cases
    • -also, default and consent judgments deemed rendered on the merits
    • NOTE: controlling law on all three full faith and credit requirements based on rendering state law
  8. Good Defenses to recognition and enforcement
    • Two good defenses:
    • 1. The judgment is penal; courts will not enforce (penal: a judgment rendered for an offense against the public)
    • 2. Extrinsic fraud: (that is, not intrinsic fraud which is fraud that could have been dealt with duringt the litigation); so extrinsic is something that could not have been handled during earlier trial (e.g. bribery of a judge)
  9. Non-Defenses to recognition and enforcement
    • 1. The judgment is based on a cause of action that violates forum's public policy
    • 2. Mistakes by the judge in the earlier trial (incompetence)
    • 3. Inconsistent judgments: a later judgment can be enforced even though it is inconsistent with a valid earlier one (but enforce last judgment in time)
  10. Foreign Country Judgments
    • recognized and enforced under principles of fairness if both:
    • 1. Jurisdiction was proper (Int'l shoe), and
    • 2. fair procedures were used
    • Use recognizing state's law to determine the above
  11. Jurisdiction of Family Law Judgments
    Divorce
    • -A valid divorce requires proper SMJ and this requires taht one of the two spouses be domiciled in the state rendering the divorce
    • Types
    • 1. Ex-parte: only one of the parties is validly domiciled where divorce is granted
    • 2. Bi-lateral: one of the spouses is validly domiciled where divorce is granted, and both spouses are subject to PJ there
    • 3. Consent: both want out and go somewhere together to get it ("quickie") (but remember that there must be valid domicile)
  12. Jurisdiction of Family Law Judgments
    Divorce
    Procedural Matters
    • 1. Burden of proof: the attacker bears the burden of proof and can introduce any relevant evidence (even after evid)
    • 2. Any interested person who is not estopped can attack a divorce decree for lack of SMJ
    • -Estoppel (P estopped)
    • --1. Where the attacker was subject to PJ in earlier proceeding (spouse in bi-lateral divorce can't later attack)
    • --2. where attacker may not have been subject to PJ, but played a meaningful role in the granting of the divorce
    • --3. Persons who are in privity with a party to the divorce (includes children)
    • --4. A spouse who has remarried in reliance on the earlier divorce
  13. Jurisdiction of Family Law Judgments
    Property Awards
    A court granting alimony or child support must have PJ over the spouse whose property rights are in issue
  14. Jurisdiction of Family Law Judgments
    Child Custody Decree
    valid jurisdiction for determining child custody lies only in the child's home state
  15. Divisible Divorce Doctrine
    If a decree has some parts that are good and some that are bad (re: jurisdiction), you keep the good and ignore the rest
  16. Choice of Law
    Constitutional Limitations (Threshhold)
    • due process and full faith and credit
    • Test: the state chosen must have a significant contact or contacts with the parties or the subject matter of the litigation which give it a legitimate interest in seeing its law applied (easy to satisfy)
    • In brief: significant contacts giving legitimate interest
    • Do not wiegh interests of the states
    • Examples not meeting test:
    • 1. after event, person moves to new state, if that is the only contact then unconstitutional to apply that state's law
    • 2. if only contact is that the suit itself is brough then unconstitutional to apply that state's law
  17. Choice of Law
    Three Approaches
    • 1. The vested rights (territorial) approach (VA)
    • 2. The most significant relationship approach
    • 3. The governmental interest analysis approach
  18. Choice of Law
    VA - Vested Rights Approach
    • the law to be applied is the law where the rights of the plaintiff vested
    • Vested rights approach has a rule for every area of law
    • Steps to choose the law under vested rights:
    • 1. List the different laws that are in the problem
    • 2. Characterize the issue of law involved in the problem (determine where it fits) (eg, torts, K, property)
    • 3. Find the conflicts rule for that area of law
    • 4. See if there are any defenses to application of the law chosen by the rule
  19. Choice of Law
    Torts
    • 1. Does the legal issue in question involve a loss distribution rule or a rule regulating conduct?
    • -Rules Regulating Conduct: apply the law of the place of the conduct
    • -Loss Distribution Rules: everything else
    • 2. If the rules is a loss distribution rule and the alleged tort is one of defamation, apply the law of the place of publication
    • 3. If the rule is a loss distribution rule the choice of law is made by applying the law of the place o fthe wrong.
  20. Choice of Law
    Contracts
    • 1. Did the parties validly choose the law to be applied in teh event of litigation?
    • -can always choose for matters of contract construction
    • -can choose for contract validity if:
    • --1. choice can't be contrary to public policy of state that would have been chosen
    • --2. need a reasonable relationship to parties or transaction; and
    • --3. the choice must be free of duress
    • 2. Does a special UCC rule apply?
    • -if so, governed by law of the forum so long as the forum has substantial relationship to transaction
    • 3. Does the rule of validation apply?
    • -usury cases (narrow)
    • courst in usury cases will apply the law of the state that would uphold the validity transaction so long as the state has some relation to the transaction
    • --
    • If not of these three apply, then apply the law of the place of making of the K
    • Place of making determines issues of validity (formalites; offer, acceptance, consideration; capacity; misrep/fraud; interpretation)
    • BUT if the issue is about performance, you choose the law of the place of performance (adequacy of performance; by whom; how; excuses)
  21. Choice of Law
    Real Property
    • Exception: if it is about the land sale contract, use contract rules
    • For the deed and conveyance issues, the law of the situs of the property is applied (where it is located)
  22. Choice of Law
    Personal Property
    • Use law of situs at the time of the relevant transaction
    • BUT, if the issue is the passing of personal property by intestate succession, the state chosen is the state of the deceased's domicile at death
    • AND, if the personal property comes under the UCC and its rules on secured transactions, the law chosen is the state of the debtor's residence or place of business
  23. Choice of Law
    Family Law
    • General Rule: if a marriage is valid where performed it is valid everywhere
    • BUT, if a marriage would violate the strong public policy of a state then it may not be recognized even though it was valid where performed
  24. Choice of Law
    Defenses
    • Three defenses
    • 1. the law chosen is procedural, not substantive
    • -Procedural
    • --burden of proof
    • --SOL; BUT borrowing statue borrows/applies the shorter SOL where a coa arose, BUT embedded/incorporated SOLs which are a part of the state substantive law giving a coa are considered substantive
    • -Substantive
    • --contributory or comparative negligence
    • --statute of frauds
    • --parold evidence rule
    • 2. That the law is against the public policy of the forum state
    • 3. that the law is a penal law (applies only to offenses against the public)
  25. Choice of Law
    Use of State Law in Federal Courts
    • A federal court sitting in a diversity case must use the choice of law rules o f the state in which it sits
    • If a case is transferred by one fed to another fed under rule allowing transfer for convenience, the court to which the case is transferred must apply the law of the state in which the transferor court sits
  26. Choice of Law
    Notice and Proof of Foreign Law
    • Courts will take judicial notice of sister state and federal law, but the law of a foreign country traditionally is a fact which must be pleaded and proved
    • If the foreign country law cannot be determined the forum court will apply forum law.

What would you like to do?

Home > Flashcards > Print Preview