Gilbert Law Summaries on Conflict of Laws
Author:
Kay, Herma Hill
Edition:
18th
Copyright Date:
2004
15 chapters
have results for conflict of laws
Chapter Four: Approaches to Choice-of-Law Problems 219 results (showing 5 best matches)
- Cavers accepts the basic premises of the governmental interest approach ( ) in its analysis of the policy or “purpose” of a particular law and the interest of a state in having its law applied. Wherever possible, cases should be disposed of by showing that the conflict is false or can be avoided by examining the purposes of the laws involved and the circumstances of the case. However, principles of preference are useful both in identifying false conflict cases and in solving true conflict situations.
- As noted above, the von Mehren and Trautman approach initially follows the governmental interest analysis approach. The forum is required to examine the laws of the various states involved and determine which states have shown “concern”—expressly or impliedly—that their laws be applied. If the respective laws are the same or if the policies of the various states are not in conflict (a
- of two or more states with ostensibly conflicting laws has a legitimate interest in the application of its law, the forum will apply the law of the interested state. This situation is known as the “false problem” or “false conflict” case.
- Today, only 10 states continue to follow the traditional approach in torts conflicts cases, while 11 states do so in contracts conflicts cases. The remaining states and the District of Columbia have chosen alternative modern approaches. In cases, 22 states adopt the Second Restatement approach, three follow a “significant contacts” approach, three states and the District of Columbia follow governmental interest analysis, three states follow a “lex fori” approach, five states follow Leflar’s “better law” methodology, and six states use a combination of the modern approaches. In conflicts cases, 24 states adopt the Second Restatement approach, five follow a “significant contacts” approach, the District of Columbia follows interest analysis, none follows a “lex fori” approach, two follow Leflar’s “better law approach,” and 10 follow a combination of the modern approaches. [Symeonides,
- Another approach to resolution of “true” conflicts cases, suggested by Professor William F. Baxter, is that of “comparative impairment,” in which a federal court would assume jurisdiction in cases of true conflict and would apply the law of the state whose underlying policies would be if its laws were not applied to resolve the case. Baxter believed that neither of the two conflicting states could resolve the conflict, but if an impartial federal court could do so, Currie’s solution of having each state apply its own law could be avoided. Baxter recognized that his approach would require that
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Chapter Three: Choice of Law—General Considerations and Pervasive Problems 45 results (showing 5 best matches)
- Renvoi, then, is a “conflict in choice-of-law rules.” There is a where the other state’s choice-of-law rules
- In determining which law to apply in a conflicts case, the traditional “vested rights” approach to choice of law ( , §§302-312) directs the forum to analyze cases as a whole and apply the law of a single state to all the issues presented. Conversely, all the modern approaches direct the forum to focus . Under the modern approaches, therefore, the laws of may govern the resolution of the different issues presented in the case. This is known as “depeçage” (
- Under minority view, the forum should accept the “renvoi” or reference back from the foreign conflict-of-laws rule, but
- The Federal Tort Claims Act specifies that in a tort case against the government, the government’s liability shall be determined by “the law of the place where the act or omission occurred.” [28 U.S.C. §1346(b)] This provision has been held to require a reference to the whole law of the place of act or omission, including its conflicts rules. [
- , the necessity of maintaining international order and goodwill—may require a more delicate approach than when only sister states are involved. [Leflar, American Conflicts Law §6]
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Capsule Summary 277 results (showing 5 best matches)
- This refers to the situation where the forum’s (F1’s) law directs the court to apply another state’s (F2’s)
- This approach basically follows the governmental interest approach except in a true conflicts case, where Von Mehren and Trautman require the court to and apply its law, or if there is no such state, to of the conflicting laws (effectiveness and current trends in the law) and apply the strongest one. Weintraub requires analysis of similar factors combined with choice-of-law principles specific to the subject matter involved (
- “Principles” applicable to general fact patterns should be developed with a view toward accommodating conflicting laws and affording fair treatment to the parties; the principles then determine the “preferred law” ( , in torts, usually the preferred law is that of the state of injury; in contracts, the preferred law is that which validates the contract, etc.).
- Under this approach, a federal court would assume jurisdiction and apply the law of the state whose underlying policies would be by failure to apply its law. Note that only one state (California) uses a variation of Baxter’s approach to resolve true conflicts.
- The law of the of the property governs all problems involving land or relating thereto. Moreover, reference is made to the situs’s “whole law” (including its conflicts rules).
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Exam Questions and Answers 102 results (showing 5 best matches)
- State X as the forum would first analyze its own policy and interests. Here the dramshop act was probably designed both to deter merchants from selling beer to minors and to provide recovery to persons injured as a result of that sale. Since the market does business in State X, the deterrence policy would be accomplished if State X law were applied. And since Xavier’s parents are residents of State X, the compensation policy would also be advanced by application of State X law. Therefore, State X has two interests in applying its law. State Y’s policy of no civil liability for merchants is in conflict with that of State X. Does State Y also have a conflicting interest in applying its contrary law? No, because Y has no interest in protecting a State X market against liability and no reason to wish to deny recovery to parents who are not residents of State Y. This is a false conflict in governmental interest terms, and State X should apply its own law.
- Choice of Law—Assuming White Takes Jurisdiction, Whose Law Will It Apply?
- Here, only one of State X’s policies—that of deterring the market’s conduct—is applicable. But this policy, plus the market’s presence in State X, is sufficient to give X an interest in applying its law. Since Yolanda’s parents lived and acted in State Y, that state may also have an interest. The question is whether State Y’s policy is intended to prevent parents from recovering when their injury is partly due to their own negligence in failing to supervise their children’s conduct (a deterrence policy), or whether it was designed to protect defendants against liability to negligent parents. If the latter is the policy, then Y is not interested since the market does no business in Y. If the former is the policy, then Y is interested. Thus, the case could either be a false conflict (only X’s interest in deterring the market is at stake), or it could be an ostensible true conflict (X’s interest in allowing recovery to deter the market conflicting with Y’s interest in preventing...
- The solution of this true conflict would turn on which choice-of-law approach was being used. The “vested rights” approach of the First Restatement would apply the law of State Y because that is where the wrongful act occurred. The hostess would escape liability. Under the “most significant relationship” approach of the Second Restatement, it seems likely that State Y’s law would also apply. Since State Y is both the place of conduct and of injury, it is presumptively the place of most significant relationship. When the residence of the defendant is added to State Y’s contacts, and the only contact with State X is that it is the plaintiff’s domicile, State Y emerges as the place whose law should be applied. Under the “governmental interest” analysis, however, State X should apply its own law unless a more moderate and restrained interpretation of its policy or interests or of that of State ...injuries to its residents occurring in State X, leaving those injured elsewhere to the law...
- Blue decides to hear the case, it should look to the policy and interests of the other interested states to determine whether a true conflict exists. In this case, all states have the same policy: Contracts of the type in question should not be upheld. There is no true conflict of laws in the case; it is a false problem. It is not known what Green’s law would provide, but both White and Red have a common policy to protect the promisor against oral contracts to sell personal property at a price of more than $400. The common policy of both states, which Blue shares, should be applied and Able should prevail.
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Chapter Five: Choice of Law in Specific Substantive Areas 368 results (showing 5 best matches)
- Other approaches to choice of law, such as Currie’s governmental interest approach and, to a lesser degree, Leflar’s better law approach, do not vary the analysis by subject matter. However, you will still take account of the unique aspects of the different subject matter areas when using these approaches when you analyze the the conflicting laws.
- The traditional rule—now almost completely discredited—was that the existence and extent of tort liability was to be determined according to the law of the
- The policy favoring reference to the law of the situs is so strong that courts usually apply the “whole law” of the situs, including its conflict rules;
- The Second Restatement also refers to the law of the
- A great body of conflicts law has developed in the area of tort immunities. For example, Husband and Wife, domiciled in State X, take a short drive into State Y, where Wife is injured because of Husband’s negligent driving. The law of the domicile (State X) permits Wife to sue Husband for negligence, but
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Approach to Exams 29 results (showing 5 best matches)
- While some exam questions on a Conflict of Laws exam may home in on one specific issue ( , “under the Second Restatement view, how would the court rule?”), often a question calls for a broad analysis of jurisdictional issues, choice of law, and enforcement of judgments. For these types of questions, the following basic approach will be helpful:
- behind the conflicting rules of each state involved, and apply the law of the place that has an interest in resolving that particular issue (remember though that the forum will apply its own law unless it has no legitimate interest in doing so);
- The forum court then applies whichever choice-of-law “rules” govern the problem as characterized ( , all “torts” problems are governed by the law of the “place of wrong”).
- Under the “local law” approach, the forum applies its own rules of law but may make reference to “appropriate” foreign rules in certain types of cases.
- You also need to determine whether the foreign law should be applied to all issues and aspects of the case, or only to those that are “outcome determinative.” Generally, the law of the
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Chapter Seven: Constitutional Limitations and Overriding Federal Law 94 results (showing 5 best matches)
- conflict between state and federal law
- The resolution of choice-of-law problems is primarily a matter of judicial discretion. Occasionally, however, there may be constitutional limitations that will affect the choice-of-law decision. At one time, the United States Constitution was interpreted to require the application of a particular law in certain cases. However, the modern view is that the Constitution merely on the extent to which states may apply their own law in conflicts cases.
- Occasionally, a choice-of-law question will involve the conflicting laws of two states subject to the United States Constitution. In answering a question involving
- Although the 1789 Judiciary Act compels reference to state law ( ), the 1934 Rules Enabling Act [28 U.S.C. §2072] authorizes the adoption of procedural rules for federal courts. This latter Act is said to “amend” the former, thereby establishing the supremacy of the Federal Rules over state law wherever the two conflict.
- First of all, the Court has held that in any conflict between the Federal Rules of Civil Procedure and state law, , all such matters are presumptively “procedural” so that they need not yield to state law under —sufficiency of service in federal action determined by Federal Rules of Civil Procedure; contrary state rules disregarded]
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Chapter Six: Traditional Defenses Against Application of Foreign Law 80 results (showing 5 best matches)
- penal laws
- A few courts have reached the same result under the “substance” vs. “procedure” approach by characterizing the statute of limitations as “substantive.” [ §296] The Uniform Conflict of Laws Limitations Act (1982) takes a similar approach by applying, in most cases, the limitations period of the state whose law is chosen to govern the substantive claim.
- A state law allowing punitive damages to a plaintiff for injuries sustained in another state has been held to be penal in the conflicts sense. There is no public wrong committed, and the penalty does not go to the state. [
- In choice-of-law questions, after you have decided which law should be applied, you need to analyze whether there are any reasons the foreign law. A defense to application of the foreign law might be that such application would violate the forum’s local or that the foreign law is a
- The purpose of distinguishing between “substance” and “procedure” is to “draw the line” on what issues the forum is justified in deciding according to local law. Because uniformity of results has long been the major goal of choice-of-law methodology, this line should be drawn so as to encourage to the greatest extent possible application of the appropriate foreign law. [42 Yale L.J. 333 (1933)]
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Index 206 results (showing 5 best matches)
Chapter One: Domicile 69 results (showing 5 best matches)
- that a wife’s domicile is that of her husband, but the presumption is . Thus, a wife can establish a domicile separate from that of her husband, even while happily married to him, and thereby choose the laws that will apply to her affairs. [ , §12] The Restatement (Second) of Conflict of Laws provides that a married woman chooses her domicile. In most cases, she and her husband will choose the same domicile while they are living together.
- Immediately upon arrival at the new location, a person may acquire a domicile there—provided the requisite intent element (below) is present. [Restatement (Second) of Conflict of Laws (“Rest. 2d”) §16] But until such arrival, no new domicile can be obtained. Thus, if a person is killed on the way to the intended new home, the domicile at the time of death is still the person’s former residence. [
- Domicile is a means of connecting a person to a place for a particular purpose. Domicile is likely to show up on your conflicts exam in one of two ways:
- 2. Effect—Conflicting Determinations of Domicile [§38]
- Domicile by operation of law:
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Summary of Contents 33 results (showing 5 best matches)
Chapter Eight: Recognition and Enforcement of Foreign Judgments 262 results (showing 5 best matches)
- Most authorities criticize “retaliation” as a defense on grounds that the United States would be adopting a conflict-of-laws principle designed to coerce other nations into giving conclusive effect to our judgments. [34 Yale L.J. 549 (1924-25)]
- §636, the Supreme Court sidestepped another established conflicts rule—that F2 will not enforce F1’s revenue laws—by compelling enforcement in F2 of an F1 judgment for taxes owed, on the rationale that the F2 court was being compelled to enforce an F1 judgment (not F1’s revenue laws). In dictum, the Court questioned whether an F2 court could even look behind an F1 judgment to see if it were based on a “penal law,” thus casting doubt on the inference previously drawn from the
- A “penal law
- conflicting presumption
- Annulment actions are governed by the law that would determine the validity of the marriage for any other purpose ( , the law of the place of celebration, except where the marriage is contrary to the “laws of nature” or otherwise contravenes some overriding policy of the parties’ domicile.
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Title Page 33 results (showing 5 best matches)
Chapter Two: Jurisdiction of Courts 304 results (showing 5 best matches)
- Conflicts examinations often have questions that concern jurisdiction. Keep in mind that there are three essential elements of jurisdiction:
- , unsecured debt, contract claim) has been the subject of considerable controversy. The issue is whether jurisdiction over the debtor is enough by itself to give a court jurisdiction over the debt—particularly where conflicting claims are being made by nonresident claimants.
- As long as the court has an adequate basis for quasi in rem jurisdiction, its decree is effective by itself to establish title to the debt and extinguish all conflicting claims. Once the debtor pays the debt in accordance with the decree, she is thus protected against further liability. If she is sued later by one of the claimants in another state, the judgment is a good defense. [Rest. 2d §68, comment d]
- to accept jurisdiction of a cause of action created under the laws of a sister state. The above cases merely hold that the forum accepts jurisdiction of the case, it is not bound by any limitations on jurisdiction imposed by the law of another state.
- , jurisdiction and choice-of-law decisions are interrelated: The Due Process Clause limits the state’s authority to assert jurisdiction over an interstate transaction or nonresident defendants, just as due process considerations limit the forum’s power to apply its own substantive law to resolve the case at bar. For the forum court to apply its own law—or for that matter, exercise jurisdiction over an interstate case—the forum must have with the parties, property, or underlying events such that the application of its law would be , §126). Therefore, a determination of proper jurisdiction may also justify the court’s application of its own law.
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Copyright Page 2 results
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- Copyright © 2004 by BarBri Group, a Thomson business. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Printed in the United States of America.
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- Publication Date: May 1st, 2004
- ISBN: 9780314143419
- Subject: Conflict of Laws
- Series: Gilbert Law Summaries
- Type: Outlines
- Description: The topics covered in this Conflict of Laws outline include domicile, jurisdiction (including notice and opportunity to be heard, minimum contacts, and types of jurisdiction), choice of law (including vested rights approach, most significant relationship approach, and governmental interest analysis), and choice of law in specific substantive areas. Also included are traditional defenses against application of foreign law, constitutional limitations and overriding federal law (including Due Process Clause, Full Faith and Credit Clause, and conflict between state and federal law), and recognition and enforcement of foreign judgments.