Conflicts of Law: Bar Checklist

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Conflicts of Law: Bar Checklist

1)Introduction

a)Personal Jurisdiction Questions: Call for an analysis of a court’s assertion of judicial power of parties to a law suit

b)Choice of Law Questions: Call for choosing among competing legal principles by analyzing the law of competing jurisdictions

c)Recognition of Judgment Questions: Call for analyzing the effect of a judgment in one jurisdiction rendered by another jurisdiction

d)Vertical Conflicts: Conflicts between state and federal government

e)Horizontal Conflicts: Conflicts between or among state governments

2)Personal Jurisdiction

a)Specific Jurisdiction

i)Minimum contacts with the state

ii)Suit arises out of or related to ’s contact with the forum state

b)General Jurisdiction

i)Suit not arising out of or related to the ’s contacts with the forum state

ii)Sufficient contacts with the state

iii)Amount to a continuous and systematic activity in the forum state

c)Personal Jurisdiction in Federal Courts

i)Federal district court’s power to assert personal jurisdiction is the same as the state court’s power to assert personal jurisdiction where the federal district court sits

ii)E.g., District Court for Eastern PA analyzed by reference to the ’s contact with Pennsylvania

3)Choice of Law

a)Territorial Approach (Restatement (First) of Conflicts of Law)

i)Pinpoints the jurisdiction where the parties’ rights vest

ii)Law of the place where the last liable event occurred

iii)For contracts, law of the place of contracting

iv)For property, law of the place where property is located

b)Government Interests Analysis

i)Defined: Refers to policies underlying competing laws

ii)General Rule: Forum state’s law applies unless party requests another law to apply

iii)If a party request another law, identify policies of the competing laws by “the ordinary processes of construction and interpretation”

iv)Identify the contacts of the parties in light of the policies

v)If there is a false conflict, court should apply the law of the interested state

vi)If there is a true conflict:

(1)Does a “more moderate and restrained interpretation” of the policy avoid the conflict?

(2)If conflict is unavoidable, court should apply the law of the forum state

vii)If the forum court is disinterested but two or more states have legitimate competing interests, dismiss pursuant to forum non conveniens

viii) If forum non conveniens unavailable

(1)Forum court should make its own judgment on what law is better or

(2)Apply the law that most closely resembles its own

ix)If no state has an interest, forum law governs

c)Restatement (Second) of Conflicts of Law

i)Section 6 Policies

(1)Needs of judicial efficiency

(2)Relevant policies of the forum state

(3)Policies of interested states

(4)Party expectations

(5)Policies underlying the field of law

(6)Certainty, predictability, uniformity of result

(7)Ease of future application

ii)Connecting Factors

(1)Restatement factors that guide application in a particular area

(2)E.g., Torts

(a)Place of injury

(b)Place of harmful conduct

(c)Domicile of parties

(d)Place of relationship between the parties, if any exists

iii)Most Significant Relationship

(1)Law of the jurisdiction with the most significant relationship to the dispute

(2)Reference policy provisions of § 6 and connecting factors

d)PA Hybrid Approach

i)Apply the law of the state with the greatest interest by evaluating the contacts each state has with the transaction

ii)Contacts must relate to the policies and interest underlying the issue before the court (qualitative analysis)

e)Answering Bar Exam Question with PA’s Approach

i)Describe Pennsylvania’s hybrid approach (hybrid, flexible)

ii)Do government interest analysis

(1)Policies behind competing laws

(2)Compare policies with the contacts in the jurisdiction

iii)For false conflicts, apply the law of the interested state

iv)For true conflicts, apply the law of the state with the greatest interest

(1)Most significant relationship with the dispute

(2)List the connecting factors (contacts, parties, subject matter)

(3)Evaluate connecting factors by discussing the Section 6 Policies

v)Add a blurb about the outcome under the other three methods (if there is time)

f)Special PA Rules

i)For property cases, the situs rule applies

ii)Contract Cases

(1)General UCC Rule: Choice of law clauses are upheld as long as the chosen jurisdiction bears a reasonable relation to the transaction

(2)Exception for Other Transactions (Restatement (Second) of Conflicts): allow the choice of law clause unless

(a)Chosen state has no substantial relationship with the parties or transaction and

(b)No other reasonable basis for the parties’ choice

(c)NOTE: Court can apply a law that has a materially greater interest in the dispute

iii)Choice of Forum Clauses: Designates the court where the dispute will be resolved

(1)Parties can freely agree that the litigation should be conducted in another forum

(2)Must be reasonable at the time of litigation

iv)Marriage: place of celebration rule

v)Corporations: law of the state of incorporation

g)Escape Valves: Ways to forego applying a particular state’s law

i)Substance v. Procedure

(1)Procedure: Rules that govern conduct of litigation

(2)Substance: Rules that govern out of court conduct

(3)Forum state procedural law applies

ii)Characterization

(1)Characterize a hybrid transaction as one over the other

(2)E.g., land sale contract: characterize as a “property” case to get the situs rule

(3)Examiners prefer the situs rule

iii)Statute of Limitations

(1)Borrowing statutes

(2)Court should apply the shorter of two competing limitations periods

iv)Public Policy

(1)Refuse to apply foreign law if it is contrary to a strong public policy in the forum state

(2)Court must carefully consider decision

(3)E.g., Vermont civil union law in PA. PA Public policy against same-sex marriages or anything that looks like them

v)Domicile

(1)Individuals: Physical presence and Intent

(2)Corporations: State of incorporation

h)Erie Doctrine

i)Federal Court; Diversity Jurisdiction; state and federal law conflict

ii)Statute

(1)Constitutionally valid exercise of Congress’ power? Yes.

(2)Supremacy clause requires federal statute to govern over conflicting state law

iii)Federal Rules of Civil Procedure

(1)Valid under the Rules Enabling Act and Constitution if regulates procedure

(2)FRCP governs over conflicting state law

iv)Federal Common Law applies unless violates Erie’s twin aims

(1)Discourage forum shopping

(2)Avoiding inequitable administration of laws

v)The Rule of Klaxon v. Stentor

(1)Where application of Erie results in conclusion that state law applies

(2)State’s choice of law methodology applies

4)Recognition of Judgments

a)Full Faith & Credit: requires honoring court to give judgment of rendering court the same sanctity and effect as if the honoring court had decided the matter

i)Jurisdiction requirement

(1)Subject matter jurisdiction over the case and personal jurisdiction over the  OR AT LEAST

(2)Full and fair opportunity to challenge jurisdiction

ii)On the Merits

iii)Final

b)Res Judicata: Prevents party from relitigating an entire suit

i)Final Judgment on the first suit

ii)Same cause of action as first suit

(1)Same subject matter and ultimate issueor

(2)Second suit seeks relief for the same harm

iii)Same parties or their privies

(1)Successors in interst

(2)Holders of future interests

(3)Beneficiaries of actual parties to the first suit

c)Collateral Estoppel: Prevents party from relitigating issues in subsequent law suit

i)Issue was actually litigated in first proceeding

ii)Issue was necessary to support the judgment of the first proceeding

iii)Party against whom collateral estoppel is asserted was a prior party or privy in the first proceeding

iv)Party had full and fair opportunity to litigate the issue in the prior proceeding

d)Divorce Judgments

i)General Rule: Full faith and credit if

(1)Proper jurisdiction and

(2)Decree is valid in the sister state

(3)Jurisdiction proper if at least one party domiciled in the rendering state

ii)Pennsylvania Rule: No action for divorce unless

(1)At least one party is a bona fide resident for six months

(2)Immediately prior to commencement of the divorce action

iii)Divisible Divorce

(1)Only one party domiciled in the state

(2)Valid ex parte divorce decree

(3)Decree does not govern collateral matters

(a)Property settlement

(b)Alimony

(c)Support

(d)Custody

(4)Decree valid as to the divorce

(5)Decree invalid as to the collateral matters