Conflict of Laws

Domicile

In General

Aproaches

Specific Areas (Characterization)

  1. Physical presence
  1. Intent to remain indefinitely

ONE only

By operation of law

paying taxes

having bank account

voting

registering vehicle

owning real estate

Presumption domicile continues until new one affirmatively established; anyone legally competent may choose/change

Need not be fixed or permanent within locality

Need not be prolonged

Married persons

Incompetents

Minors = parents

Corporations = state of incorporation

legitimate = father's domicile; illegitimate/father deceased = mother's domicile

parents separated/divorced = domicile of parent with whom C lives

both parents dead and/or abandoned C = domicile of person who stands in loco parentis

common law = woman same domicile as husband; could establish own domicile if separated

modern trend = allows person who lives apart from spouse to est. separate domicile

insane at infancy = domicile of parents

become insane after infancy = domicile prior to insanity, but may change if sufficient mental capacity to choose home

Military = domicile at time of enlistment, unless prove intent to change; same with out of state incarceration

Two or more homes; two "principal" homes = one est. first presumed to continue as domicile unless affirmative intent to change

Which state's law to characterize cause of action? (e.g. torts or contracts problem)

Which state's law governs which issues?

How much foreign law to apply, i.e. internal law only or choice of law as well? (renvoi)

State where court sits

Forum's own procedural rules; whether procedural or substantive decided based on forum state's law

Majority view = foreign state's internal law only; forum state's choice of law

Vested Rights
Traditional / 1st Restatement

Most Significant Relationship
Modern / 2nd Restatement

Interest Analysis

Apply law of state in which rights of parties "vest", i.e. where act or relationship giving rise to cause of action occurred / was created

Apply law of state most legitimately interested in the outcome (government's interest)

Apply law of state with "most significant relationship" to issue being decided = look to all circumstances

Lex loci situs = place where property located

Lex loci delecti = place of harm or injury

Lex loci contractus = place of contracting (where K made, or where K performed, if conflict)



FACTORS:

  • Needs of interstate & international systems
  • Relevant policies & relative interests of forum state and other interested states
  • Expectations of parties
  • Judicial economy

Default = forum state applies its substantive law unless has no legitimate interest in how particular issue is resolved


Look to policies underlying substantive laws of various states involved to see which has policy interest in having its law applied

Depecage = choice of applicable law depends upon issue involved, and different issues in the same case may be decided by applying the law of different states

*If forum state's statute expressly or impliedly extends to out of state transactions, no choice of law problem / forum applies own laws


* Fed court exercising diversity jx applies choice of law rules of state in which it sits

  • In general, determined in accordance with law of the forum
  • Law may be classified as procedural in one jx, for example, and as substantive in another

Torts

Worker's Comp

Wrongful Death

Dram Shop Act Exception
Generally substantive law of state where tavern located rather than state where injury occurred, EXCEPT when:

  • Tavern uses advertising to target residents of another state, and;
  • Could anticipate that out of state patrons could return to their home state shortly after consuming beverages (e.g. bar located near border of two states)

Generally, state's own law; but EE may file and receive awards under WC acts of diff states, if multiple states have an interest (unless specifically barred)

Any state with legitimate interest in an injury and its consequences may apply its compensation act, including state where:

  • Injury occurred;
  • Employment principally located;
  • Employer supervised employee's activities;
  • Most significant relationship to K
  • Agreement in K;
  • Some other reasonable relationship to occurrence, parties, employment

Trusts & Wills

Property

Contracts

2nd Restatement =
law where injury occurred, unless other state has more significant relationship

Although SOL generally considered procedural, here SOL closely identified with right of action, thus SUBSTANTIVE and apply foreign law

Family Law

A number of states follow modern approach:

  • Consider policies and interests of states where
    • Parties are domiciled
    • Injury occurred

Generally, traditional approach; but if would produce an arbitrary or irrational result, then court may apply modern approach

Validity of marriage = state where ceremony took place (unless other state has more significant relationship w/ the marriage and the marriage violates strong public policy of the other state)

Divorce proceeding = law of the forum


But where spouses live in different states, domicile of one of the parties is sufficient, even if no personal service or domicile on the other party

By stipulation:

  • Law of forum expressly stated in K
  • Not boilerplate in adhesion K
  • Does not violate public policy of state with most significant relationship to issue

No stipulation:


Generally, traditional approach

A number of states follow modern approach:

  • Consider policies and interests of states where
    • Parties negotiated K
    • Parties made K
    • Performance of obligations to be met
    • Subject matter of K located
    • Parties domiciled, reside, conduct business, or incorporated

If patron becomes intoxicated in state with no dram shop act then causes injury in state with dram shop act, state court not likely to imposed liability on tavern

Moveable

Immovable = interest closely connected/related to the land (e.g. leasehold, right to rents)

Determination traditionally made under law of forum; 2nd Restat. says according to situs, i.e where property located

Law of situs, incl, choice of law rules; applies to:

  • Validity and effect of conveyance
  • Mortgages
  • Liens

Executory Ks = contracts problem, governed by place of making

Tangible chattels = situs at time of relevant transaction OR more likely the UCC

Trusts:
Realty trust = law of situs of land; Legality of trust of personalty = law of settlor's domicile


2nd Restat. says look to will of settlor as to controlling law of admin of trust, or if none, state of T's domicile


Inter vivos trust of personalty = state to which admin most substantially related; but land trust = situs

Intestate succession:
Personalty = intestate's domicile; realty = state where located

Wills:
Personalty = domicile; realty = situs


Will executed in compliance with law of jx where T domiciled at time will executed or at time of death = effectual to pass property in that state


Generally interpreted under laws of T's domicile, unless contrary intention by T

Corporations

laws governing corps are laws of state of incorporation

Escape Devices

Limits

Jurisdictional

Constitutional

Sister State/Foreign Judgments

Preemption

SUBSTANTIVE v. PROCEDURAL RULES
In general:

  • Forum state applies own procedural rules
  • Substantive determined according to the forum choice of law rules
  • Whether substantive or procedural determined by forum law

Limitations
Courts will generally not enforce:
1) PENAL LAWS of another state b/c purpose to punish offense against public justice of that state, not private remedy
2) REVENUE LAWS of another state
3) Laws of another state that would offend/are contrary to a strong PUBLIC POLICY of the forum state
4) Cases involving TITLE TO LAND located in another state b/c local expertise necessary, BUT if PJ over parties, may require one party to convey property to the other

LEGAL DUTY OWED

SUFFICIENCY OF FACTS & EVIDENCE

PRESUMPTIONS

PAROLE EVIDENCE RULE

BURDEN OF PROOF

MEASURE OF DAMAGES

EVIDENCE

STATUTE OF FRAUDS

STATUTE OF LIMITATIONS

MAJORITY RULE = SUBSTANTIVE - apply law of state where K made

Law of state that creates the right of action

SUBSTANTIVE

SUBSTANTIVE - apply law of foreign state

Law of forum

G.R. = PROCEDURAL

G.R. = PROCEDURAL - apply law of forum

G.R. = PROCEDURAL

G.R. = PROCEDURAL (bar to remedy, not cause of action)

EXCEPTION = SUBSTANTIVE if so interwoven with cause of action as to become one of the elements necessary to est. that right/time fixed is a limitation on cause of action (e.g. WRONGFUL DEATH)

EXCEPTION = SUBSTANTIVE if outcome determinative (e.g., violation of statute mere evidence of negligence in one state but negligence per se in another state)

EXCEPTION = SUBSTANTIVE if primary purpose as to burden of persuasion is to affect the outcome (e.g., P must prove lack of contributory negligence) - then apply foreign state's rule

EXCEPTION = SUBSTANTIVE if a conclusive presumption

COMPARE TO CIV PRO / ERIE DOCTRINE
In fed diversity cases = court will apply fed procedural law and state substantive law

RENVOI

  • How much law of another jx applies: substantive only or "whole law" incl. choice of law rules?
  • Whole law - foreign state's conflict rules may "refer back" to other jx, create ping pong effect where no substantive law gets applied
  • Thus, most states reject renvoi
  • Exceptions = 1) Fed Torts Act = apply law of place where act/omission occurred," incl. conflict rules; 2) Determining title to land and testate or intestate succession to interests in land/immovables

Judicially Noticed Foreign Law

  • Fed statutes, and fed regulations/executive orders published in Fed Register
  • Statutes or session laws printed by authority of sister state or proved to be commonly recognized in its courts = prima facie evidence

Express = Congress specifically prohibits states from enacting a particular substantive rule of law

Actual Conflict = state law in direct conflict of federal law/preempted to extent of conflict

Implied Conflict = applicable federal law itself established standard of fed preemption, preempts state law inconsistent with that standard (conversely, state law regulating matter consistent with fed law not preempted)

Field = "Scheme of fed regulation so pervasive as to make reasonable inference that Congress left no room for state to supplement it", incl. conflicts with fed treaty or interference with fed power over foreign affairs

Full Faith and Credit Clause = national policy of maximum recognition of sister state judgments, incl. fed court judgments, by sister state courts

Applies to FINAL JUDGMENT ON THE MERITS

Cannot refuse on grounds judgment is contrary to public policy of F-2; judgment is wrong; judgment based on tax law; or F-2 has interest in not recognizing judgment

DOES NOT REQUIRE recognition of judgment that is
1) not final, i.e., subject to modification in F-1 court, such as custody decree (always modifiable on basis of changed circumstances);
2) not a judgment on the merits (e.g., dismissal as barred by SOL, against forum's public policy, injunction prohibiting party from filing suit in another state);
3) not valid

EXCEPTIONS:

  • F-1 court lacked jx in due process sense and decree entered ex parte, prohibiting challenging party from litigating jx question
  • judgment subject to collateral attack in F-1 court on grounds such as lack of SMJ or fraud
  • enforcement of the judgment barred by nondiscriminatory application of forum's SOL, i.e., forum must apply same SOL to enforcement of viable foreign judgments as does to domestic ones

Collateral Estoppel = whether or not to give to a factual finding made in an action in a sister state court is a matter of F-2 law; F-2 not precluded from giving collateral estoppel effect, even if would not have that effect under F-1 law

Last In Time = conflicting jx determinations by different courts and parties appeared in both proceedings, determination by 2nd court binding on parties and on 1st court

Race to Judgment = 2 courts exercising jx over same case = first final judgment

Fraud/Force/Privilege

  • No jx over person or property where obtained by fraud or force
  • No jx when required to refrain by needs of judicial administration (i.e., immunity from service of process when in state only to participate in another judicial proceeding - CIV PRO)
  • No jx where prohibited by international law or treaty

Forum Non Conveniens

  • No jx where significant inconvenient for the action, provided more appropriate forum available to P
  • Within trial judge's discretion, considering that 1) P's choice of forum should not be disturbed except for weighty reasons; and 2) action will not be dismissed unless suitable alt forum available to P
  • Where P resident of chosen forum, choice will rarely be disturbed
  • Other considerations:
    • ease of access to sources of proof
    • availability of compulsory process for attendance of unwilling witnesses, and cost of obtaining their attendance
    • possibility of a view of the premises, if appropriate
    • enforceability of a judgment
    • judicial administrative difficulties
    • all other practical problems
  • Usually, will stay action until suit brought in another forum, or dismiss on condition D stipulate to accept process and not plead SOL in another state

Choice of Forum by Agreement

  • May be imposed by agreement of the parties
  • Given effect unless unfair or unreasonable (burden of party looking to avoid to prove)
  • Cannot oust a state of jx