Term
| Spotting a Conflicts Question |
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Definition
| First: There will always be two or more states. Second: if, for the “state names” they use the “alphabet” it’s almost guaranteed to be conflicts. |
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Term
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Definition
| First, in the fact pattern they will tell you that a judgment has been rendered in one jurisdiction. Second, IN the call of the question they will tell you that one of the parties is seeking to have it recognized in a second jurisdiction. |
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Term
| Rendering vs. Recognizing |
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Definition
| The state handing down the judgment is the rendering state; the state called upon to recognize and enforce it as the “recognizing” state. |
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Term
| Is the judgment entitled to full faith and credit? |
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Definition
| 2 steps. Are the three FFC req'ts satisfied? Are there any good defenses to FFC? |
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Term
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Definition
| Jurisdiction must have been proper in the rendering state; judgment must be on the merits (dismiss bc of sol is not on merits/default judgments are on the merits); the judgment must be final. (Favorite way to raise this in fam law – modifiable divorce decrees are not final). |
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Term
| Jurisdiction – When to attack? |
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Definition
| Jurisdiction can only be attacked once. Either in the rendering court proceeding or the recognizing court proceeding. |
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Term
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Definition
| These three issues are evaluated according to rendering – i.e. state handing down the judgment – state law. This means that if the case would not have been proper in the recognizing state, that is irrelevant because the rendering state law governs. |
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Term
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Definition
| Good Defenses: Penal Judgments and Judgments procured by Extrinsic Fraud. Bad Defenses to FFC is that the judgment is contrary to public policy and mistakes of law or of fact were made. PP is irrelevant and if mistakes were made they should have been appealed in the rendering state. |
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Term
| Penal Judgments – Defense to FFC? |
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Definition
| It is penal if it punishes an offense against the public. In order to conclude that a judgment is penal, the P must be the state; if a private person is the P the judgment is never penal. E.g. P recovers slight actual damages and heavy-duty punitive damages from D. This is not a penal judgment bc the plaintiff is a private person. |
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Term
| If a judgment is procure by Extrinsic Fraud is it a defense to FFC? |
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Definition
| If the fraud could have been dealt with during the earlier trial within the regular workings of the judicial system, its intrinsic fraud; if not it is extrinsic fraud. |
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Term
| Foreign country judgments |
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Definition
| Comity – i.e. recognition – is given on the same basis as sister state judgments. However, the recognizing court will look to see if our fairness factors are satisfied in terms of whether the jurisdiction was proper (minimum contacts analysis) and whether fair procedures were used during the earlier litigation – and not a sham court. |
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Term
| Recognizing Divorce Decrees |
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Definition
| 2 steps. Determine if the jurisdiction was proper and then determine if the person attacking the jurisdiction is estopped from doing so. Jurisdiction is proper if at least one spouse was domiciled in the rendering state – i.e. SMJ. Persons will be estopped from attaching an earlier judgment if the persons were subject to personal jurisdiction in the earlier proceeding; persons who played a meaningful role in earlier proceeding (i.e. paid expenses); persons in privity (children); persons who marry or remarry in reliance on earlier proceeding. |
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Term
| Determining if Jurisdiction was proper for Property and Custody Awards |
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Definition
| For property awards, jurisdiction was proper if there was personal jurisdiction over the spouse whose property rights were at issue. For custody awards, jurisdiction is proper if the rendering court is that of the child’s home state. |
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Term
| Divisible Divorce Doctrine |
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Definition
| If the DD jurisdictional req’t is satisfied but the property/custody ancillary req'ts are not, then the judgment is severable. The divorce is valid; the ancillary matters are not. |
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Term
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Definition
| Must have domicile capacity. 2 parts to determining domicile: The physical presence in a place and the intent to be domiciled in that place. Physical presence even for a very short time counts as long as the intent to remain is there. If you have multiple residences than your primary one is your domicile. |
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Term
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Definition
| Domicile assigned to one who lacks capacity. Infants have the domicile of their parents, the one who has custody. Mental incompetents are assigned the domicile of their parents. If you become incompetent after you have acquired domicile of choice then you retain that domicile. |
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Term
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Definition
| Facts patterns will involve litigation having factual contacts with more than state. These states will have conflicting laws with conflicting results. Q: which state law governs? Answer: it will be selected by the forum court using its choice of law approach, subject to statutory and constitutional limitations. |
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Term
| Choice of Law in Federal Courts/Diversity Cases |
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Definition
| Rule: if the forum is a federal district court sitting in diversity jurisdiction, the court will apply the conflicts rule of the state in which it is located. If the case has been transferred from another district, the ct will apply the conflicts rules of the transferor state. |
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Term
| Choice of Law Approaches – model opening paragraph |
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Definition
| In issue is which states law will govern the outcome of this litigation. It will be the law selected by the forum court using the CCCCCC approach. (use for all 3 approaches, which will be given to you in the facts) |
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Term
| 3 types of Choice of Law Approaches |
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Definition
| Vested Rights Approach; Most Significant Relationship Approach; Governmental Interest Approach. |
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Term
| Vested Rights Approach – exam analysis |
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Definition
| In issue is which states law will govern the outcome of this litigation. It will be the law selected by the forum court using the Vested Rights approach. Under this approach the court will apply the law of that state mandated by the applicable vesting rule. That rule is selected according to the relent substantive area of law. NEXT Paragraph – 4 sentences. Characterize the substantive area of law involved (i.e. tort/contract, etc); State the appropriate vesting rule (i.e. the place of injury); state which state wins, i.e. where the rights vest, its law applies (The injury occurred in NE and thus its law applies.); State the Result; (under NE’s law, there is interfamily tort immunity and, thus, H cannot recover from W). |
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Term
| Most Significant Relationship Approach |
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Definition
| 4 Paragraphs: 1) In issue is which states law will govern the outcome of this litigation. It will be the law selected by the forum court using the Most Significant Relationship Approach. 2) Under this approach the court will apply the law of that state which is most significantly related to the outcome of the litigation. To determine this, they will look at (i) the connecting facts and (ii) certain policy principles. 3) Discuss the connecting facts. Where did they occur and what are they. Restatement Approach requires different analysis for different substantive areas. 4) Discuss the policy principles. Look at the interests of the forum and any other factually connected jurisdictions. State what state wins and the RESULT. |
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Term
| Government Interest Approach |
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Definition
| 4 Paragraphs. 1) In issue is which states law will govern the outcome of this litigation. It will be the law selected by the forum court using the Government Interest Approach. 2) Under this approach the ct will apply its own law as long as it has a legitimate interest in the outcome of the litigation. If it has no legitimate interest, this is a false conflict case and it will apply the law of another state. 3) discuss whether the forum has a legitimate interest in the outcome. If not discuss the interests of the other states. 4) State what state wins and the result. ** note that you are looking for a legitimate interest and not the greatest – therefore you will almost always apply forum law. Substantive area of law is not important for this approach. |
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Term
| Torts in Conflicts of Law |
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Definition
| Vested Rights Approach/Vesting Rule: Place of Injury. MSR Approach and facts: Place of Injury. Place of conduct causing injury. Place of the home state. Place where the relationship, if any, bw the parties is centered. In multiple state tort cases usually the P’s domicile will be used. For interfamily tort immunity cases is the place of common domicile. |
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Term
| Contracts – Choice of Law Approach – K contains choice of law provision |
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Definition
| Determine if there is a valid express choice of law provision. If so, it governs and the ct never gets to it. But make sure it is valid! This provision can be invalidated if the law selected is that of a state having no reas relationship with the K or if there was no true mutual assent – i.e. a misrepresentation. If in doubt, find the provision invalid on exam. |
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Term
| Contracts Choice of Law Approach – K does not contain a COL Provision |
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Definition
| Vested Rights Approach: contract formation problems: place of execution. Contract performance problems: place of performance – or primary performance if more than one state. MSR Approach/Facts: Place of negotiation; Place of execution; Place of performance; place of home state; place where the subject matter, if any, is located. Note that in land K’s, the situs governs. |
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Term
| Property Choice of Law Approach |
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Definition
| Both vesting and msr are the same for exam purposes. Real property rule 1: Situs. This covers both inter vivos transactions – land sale K’s – and inheritance matters. Personal Property Rules: Situs at the time of the Relevant Transaction. Rule 2: Inheritance Matters. Domicile of Decedent at Date of Death. If an intangible instrument is incorporated in a document (i.e. a NI or stock certificate), the situs is where the document is. |
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Term
| Family Law and Choice of Law Approach |
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Definition
| Marriage: If a marriage is valid where it is performed it will be recognized as valid everywhere. Exception: where domiciliary of one state temporarily leave that state and go elsewhere to get married in order to avoid a prohibitionary rule of their state domicile, their state of domicile will not recognize the marriage. I.e. against a strong public policy. Premarital K’s are governed by K COL rules. Forum always applies its own divorce laws since at least one spouse is domiciled there and it has an interest in having its own laws apply. |
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Term
| Defenses to Choice of Law |
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Definition
| Other law is against forums public policy – almost never accepted. |
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Term
| Substance/Procedure Dichotomy |
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Definition
| The forum will use its COL approaches to determine which substantive law to apply. However, if the matter is procedural it will apply its own laws. Opening Exam Answer: In issue is whether the APPLICABLE LAW TYPE is substantive or procedural, for if it is procedural the forum will apply its own law. |
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Term
| Statute of Limitations – favorite fact pattern |
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Definition
| General Rule: Statutes of Limitations are treated as procedural. Thus, the forum will apply its own statute. Two Exceptions: Borrowing Statutes (under these the forum is directed to apply the “shorter” time limit, either the forums or where the state arose) and Statute Conditions Substantive Rights – rule is if you apply another state’s statute which creates a substantive right you should apply the entire statute including its otherwise procedural type provisions. |
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