Conflicts of Laws

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Author:
johncburt
ID:
198857
Filename:
Conflicts of Laws
Updated:
2013-02-13 18:47:41
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Conflicts Laws
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Description:
Bar Review
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  1. Conflicts of Laws - Two Testing Areas
    • Always wrapped with other subjects, like family law:
    • 1. Recognition of Judgments
    • 2. Choice of Law
  2. Full Faith and Credit - Requirements (3)
    • 1. Jurisdiction must have been proper in rendering state
    • 2. Judgment must be on merits (default judgment works but SOF does not)
    • 3. Judgment must be final (not final while on appeal, modifiable alimony is not final)
  3. Full Faith and Credit - Two Good Defenses not to have FFC
    • 1. The judgment is penal (by the state)
    • 2. Procured by extrinsic fraud- Something that could not be dealt with at trial, like bribing the judge
  4. Full Faith and Credit - Bad Defenses (don't work to oppose FFC)
    • 1. Judgment contrary to recognizing states public policy
    • 2. Mistake of law or fact (should take that up on appeal in rendering state)
  5. Domicile Issue - Two part test
    • 1. Physical prescence (short time); and
    • 2. Intent to be domiciled there
  6. Choice of Law - Sample Answer Of what state's law will be applied
    "At issue is which states law will govern the outcome. It will be the law selected by the forum state"
  7. Choice of Law Issue - What state's law governs- 3 approaches used by states
    • 1. Vested Rights (place of injury, K)
    • 2. Most significant Relationship approach (most important policies)
    • 3. Interest analysis (any interest at all)
  8. Choice of Law - Interest (any) Analysis
    A state that applies this analysis will generally keep the case if it has any Interest in it.  If the court has no interest it will likely dismiss the case.
  9. Choice of Law - Most significant Interest Approach (2nd Restatement) - Policy analysis
    If a court applies this analysis, it is most interested in which state has more important policies to advance.
  10. Choice of Law - Vested Rights Approach (1st Restatement - traditional)
    A court that applies this analysis is interested in what state has the most ties to the case, like in torts, where did the wrong take place or in a K, where was it entered into or performed.
  11. Choice of Law - Foreign Law, substantive and procedural
    US Court will always apply its procedural laws, may apply foreign substantive laws if they are fair and are not penal.
  12. Choice of Law - Depecage, what law is applied to each issue
    1st restatement said that a state was required to apply one states law to all the issues.  Modernly, courts might apply some laws from the forum and some from the other state.
  13. Choice of Law - Federal Law in a State Court what can/cant state do
    Some federal laws, like anti-trust and patent, can only be resolved with federal law.  If it is subject matter that a state can regulate then the judge can decide what law to apply.
  14. Choice of Law - State Law in a Federal Court, what does ct use
    Federal Courts must apply the State Law
  15. Choice of Law - Proof of Foreign Law
    You have to prove that a Foreign law is the law, otherwise it will be treated analogous to a State law or dismissed.

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