Conflicts of Law

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Author:
apgiering
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159445
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Conflicts of Law
Updated:
2012-07-07 09:51:21
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CT Bar
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CT Bar
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  1. Domicile
    • Used to choose the law to be applied to determine intestate succession of personal property
    • Used to determine which state gets estate taxes
    • Gives subject-matter jurisdiction for a divorce
  2. Domicile by choice
    • Physical presence in the state
    • The intention to remain for the forseeable future, that is, indefinitely
    • Need legal capacity - the ability to fend for yourself
    • You can only have one (if you have multiple residences, the primary one is considered the person's domicile)
  3. Can you have more than one domicile?
    No.  If you have multiple residences, the primary one is considered the person's domicile.
  4. Domicile by operation of law
    • 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 guardians
    • If parents are divorced, the domicile is that of the parent who has physical custody
    • If a person has a validly acquired domicile before becoming mentally incompetent, that person will retain the domicile of choice during the period of incompetency
  5. How do you determine the domicile of a child or mental incompetent?
    If a person does not have legal capacity to get domicile of choice, the child or mental incompetent will have the domicile of that person's guardians.

    (NOTE: If a person had a validly acquired domicile before beocming mentally incompetent, that person will retain the domicile of choice during the period of incompetency)
  6. How do you determine the domicile of a child of divorced parents?
    The domicile is that of hte parent who has physical custody.
  7. How do you determine the domicile of a mentally incompetent person who had a validly acquired domicile before becoming mentally incompetent?
    That person will retain the domicile of choice during the period of incompetency.
  8. Rendering state
    The state handing down the judgment.
  9. Recognizing state
    The state called upon to recognize and enforce the judgment. (Also called the forum state.)
  10. When does a state give another state's judgment full faith and credit?
    • Valid jurisdiction in the rendering court
    • Final judgment
    • Rendered on the merits
    • Judgment is NOT penal
    • There is no extrinsic fraud
  11. One attack rule
    The validitiy of jurisdiction can be attacked only once, either in the rendering court or in the reckoning court.
  12. If a judgment is modifiable, is it considered a final judgment?
    No, but it will usually still be enforced under principles of commity.

    • EXCEPTIONS:
    • 1) Future alimony
    • 2) Future child support
  13. Will modifiable judgments for future alimony or future child support be given full faith and credit by another jurisdiction?
    No, these judgments are modifiable and will not be enforced under principles of commity.
  14. Are judgments on appeal considered final judgments deserving of full faith and credit by a recognizing state under principles of commity?
    No, unless the rendering state would allow enforcement of the judgment pending appeal.
  15. When are judgments on appeal considered final judgments deserving of full faith and credit by a recognizing state under principles of commity?
    When the rendering state would allow enforcement of the judgment pending appeal.
  16. Are default judgments considered to be rendered on the merits?
    Yes.
  17. Are consent judgments considered to be rendered on the merits?
    Yes.
  18. Penal judgment
    Judgment rendered for an offense against the public.

    Recognizing state does not owe full faith and credit.
  19. Does a recognizing state owe full faith and credit to a penal judgment?
    No.

    (Penal judgment = Judgment rendered for an offense against the public.)
  20. Does a recognizing state owe full faith and credit to a judgment marred by extrinsic fraud?
    No.
  21. When does a recognizing state not have to give full faith and credit to a rendering state's final judgment?
    • The judgment is penal - a judgment rendered for an offense against the public
    • Extrinsic fraud
  22. What are non-defenses that do not work to invalidate a rendering state's judgment?
    • Judgment is based on a cause of action that violates forum state's public policy
    • Mistakes by the judge (you shoulda appealed)
    • Inconsistent judgments (last in time gets enforced)
  23. Are mistakes by the judge a grounds for vacating a rendering state's judgment?
    No, you should have appealed.
  24. Are inconsistent judgments grounds for vacating a rendering state's judgment?
    No, the last in time gets enforced.
  25. When are foreign court judgments given full faith and credit?
    • Principles of fairness, two-part comity test:
    • 1) Jurisdiction must have been proper
    • 2) Fair procedures must have been used in the foreign country proceeding (use recognizing state's law)
  26. What is required for a valid divorce?
    Subject-matter jurisdiction.

    One of the spouses must be domiciled in the state rendering the divorce.
  27. Ex-parte divorce
    Only one of the spouses is validly domiciled where the divorce is granted.
  28. Bi-lateral divorce
    One of the spouses is validly domiciled where the divorce is granted, and both spouses are subject to personal juridsiction there.
  29. Consent divorce
    Where both want out of the marriage and go together somewhere to get it.

    NOT valid.
  30. Who can attack a divorce decree for lack of subject matter jurisdiction?
    Any interested person who is not estopped.

    • Estopped when:
    • 1) Attacker was subject to personal jurisdiction in the earlier proceeding
    • 2) The attacker played a meaningful role in the granting of the divorce
    • 3) Persons who are in privity with a party to the divorce (including children)
    • 4) A spouse who has remarried in reliance on the earlier divorce
  31. Who bears the burden of proof in challenging a divorce for lack of subject matter jurisdiction?
    The attacker bears the burden of proof.
  32. What evidence can the attacker bring in challening a divorce for lack of subject matter jurisdiction?
    Any relevant evidence whatever, even if the evidence came into existence after the divorce was granted.
  33. When is a person estopped from attacking a divorce decree for lack of usbject matter jurisdiction?
    • Attacked was subject to personal jurisdiction in the earlier proceeding
    • The attacker played a meaningful role in the granting of the divorce
    • Persons who are in privity with a party to the divorcee (including children)
    • A spouse who has remarried in reliance on the earlier divorce
  34. Whatis the jurisdicitonal requirement before a court can grant alimony or child support?
    The court must have personal jurisdiction over the spouse whose property rights are in issue.
  35. Which court has valid jurisdiction for determining child custody?
    Valid jurisdiction lies only in the child's home state.
  36. Divisible divorce doctrine
    If a divorce decree has some parts that are good and some that are bad, you keep the good and ignore the rest.
  37. What is the constitutional due process requirement for a state to have jurisdiction?
    The state chosen must:

    • 1) Have a significant contact or contacts with the parties or the subject matter of the litigaiton which gives it a
    • 2) Legitimate interest in seeing its law applied
  38. Vested rights approach (First Amendment)
    The law to be applied is the law where the rights of the plaintiff vested, and each area of the law had a rule or rules to answer this.

    • 1) Determine the substantive area of law involved in the problem
    • 2) Find the vesting rule for that area of law
    • 3) Apply the vesting rule to choose the law to apply
    • 4) State the result of the law chosen by the rule
  39. Tort-specific choice of law rules under the vested rights approach
    • Rules Regulating Conduct - apply the law of the place of the conduct
    • Loss distribution rule - The instant a cause of action airses, the plaintiff's rights become vested, so apply the law of the place of the wrong (not necessarily the same as the place of the injury)
  40. Contract-specific choice of law rules under the vested rights approach
    • All issues of contract ocnstruction are governed by the place of performance
    • All issues of contract validiy are governed by the place of making
  41. Most significant relationship approach (Second Restatement)
    The law to be applied is the law of the state with the most significant relationship to the outcome of the litigation.

    • 1) Determine the substantive area of law in the problem
    • 2) Find and discuss the connecting facts
    • 3) Note and discuss the policy principles (forum/the other state)
    • 4) Choose the law with the most significant relationship to the outcome based on your conclusions
    • 5) State the result of hte law chosen on the case
  42. Tort-specific choice of law rules under the most significant relationship approach
    • Rules regarding conduct -- apply the law of the place of the conduct
    • --Loss distribution - Connecting facts:
    • ----A) The place of the injury
    • ----B) The place of conduct causing the injury
    • ----C) The residence of the parties
    • ----D) The place where the relationship, if any, between the parties is centered.
  43. Contract-specific choice of law rules under the most significant relationship approach
    • Connecting facts:
    • --Place of negotiation
    • --Place of execution
    • --Place of performance
    • --Place of home state of each party
    • --Place where the subject matter of the contract (if any) is located
  44. Governmental interest analysis approach
    • Begin with the assumption that the forum will apply its own law
    • False conflict - apply the law of the only jurisdiction with an interest in the outcome of the litigation
    • True conflict - apply the law of the forum state, unless the interest of the other state is much better
    • Disinterested forum - apply the law that is closest to the forum law, or apply the better law
    • Unprovided for case - apply the forum law
    • Tort rule regultaing conduct - apply the law of the place of the conduct
  45. False conflict (governmental interest analysis approach)
    Where only one state has an interest in having its law applied.

    Apply the law of the only jurisdiction with an interest in the outcome of the litigation.
  46. True conflict (governmental interest analysis approach)
    Where two or more of the states involved have an interest in the litigation, and one of them is the forum state.

    Apply the law of the forum state, unless the interest of the other state is much greater.
  47. Disintered forum (governmental interest analysis approach)
    Two or more states have an interest in having their law applied and the forum is not one of them.

    • Apply the law that is closest to the forum law, or
    • Apply the better law.
  48. Unprovided-for case (governmental interest analysis approach)
    Apply forum law.
  49. Tort-specific choice of law rules under the governmental interest analysis approach
    Rules Regulating Conduct -- apply the law of the place of the conduct.
  50. Under contract law, can parties choose the law in the contract for matters of contract construction?
    Yes, so long as

    • 1) The choice isnt contrary to a fundamental policy of a state with a greater interest than the chosen state,
    • 2) There must be a substantial relationship to the parties or the transaction, and
    • 3) The choice must be free of duress (not a contract of adhesion)
  51. Which state's law is applied in real property disputes?
    The situs of the property.
  52. Which state's law is applied in personal property disputes?
    The situs at the time of the relevant transaction.

    EXCEPTION: 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.
  53. What are defenses to applying a certain state's law?
    • The law is procedural, not substantive
    • Burden of proof
    • Statute of limitations (exception -- borrowing statute)
    • Contributory or comparative negligence
    • Statute of Frauds
    • Parole evidence rule
    • The law is against the strong policy of the forum state
    • The law is a penal law
  54. Which choice of law rules does a federal court apply in a diversity case?
    The choice of law rules of the state in which it is sitting.

    If a case is transferred to another district, apply the law of the state in which the original court sits.

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