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BAR - Conflicts of Law

Terms in this set (18)

Acquisition of a new domicile means what for the former domicile
The acquisition of a new domicile extinguishes a former domicile
In general what is a minors domicile
Is the same as the domicile of the miners parents
If the miners parents are separated or divorced what is the minors domicile
The minors domicile is the domicile of the parent with whom the minor lives
In general what is the domicile of persons judged incompetent
Person judged incompetent will retain the domicile they had prior to their insanity or incompetence
How do you determine an independent persons domicile
1) The persons physical presence in a state and
2) the persons intent to remain indefinitely
A person is starting a change in domicile has the burden of proving the change in residence in the intent to make that their permanent residence, how do they prove this:
Relevant objective indicators include:
1) Owning real estate
2) voting
3) paying taxes to the state or a town
4) having a bank account and
5) registering an automobile in the state
Can a married couple have separate domiciles
Yes they married couple can have separate domiciles (for instance long distance marriages)
Procedural rules Relate to what
Whether the rules govern your rights inside the court
What do substantive rules relate to
Your rights and obligations outside the court
A federal court exercising diversity jurisdiction will apply what choice of law rules
The court will apply the choice of law rules of the state in which it sits
For a choice of law approaches the first restatements vested rights approach states what
The forum must apply the law of the state where the right of the parties invested in other words for any cause of action the form applies the law of the state where the actor relationship giving rise to the cause of action occurred or was created
Under choice of law the first restatement vested rights approach also known as the traditional approach usually leads to court applying one of the following three choices of a law of rules:
The law of the place:
1) of wrong or injury
2) contracting or
3) where the property is located
Under choice of law the second restatement also known as the most significant relationship approach states that
For any particular issue the forum must apply the law of the state which has the most significant relationship to the issue being decided and may apply the substantive law of different states to different issues arising in the case
As a matter of general principle the second restatement outlines set of broad considerations that should go into a choice of law determination include
1) Needs of the interstate and international system
2) of relevant policies and relative interests of the foreign state and other interested states
3) justified expectations of the parties
4) notion of judicial economy
Under choice of law the interest analysis approach states that
For any particular issue a forum should apply the law of the state that is the most legitimately interested in its outcome. The default rule is that the forum should apply the substantive law of the foreign state and apply other states law only the forum state has no legitimate interest in having a particular issue is resolved
Limitations on and exceptions to choice of approaches are outside by Due process stating that
The choice of law determination must be consistent with the norms of fairness embodied in the 14th amendment due process clause -And the law to be applied or not so tenuous as to render its application unpredictable or arbitrary
Limitations on and exceptions to choice of law approaches are also guided by public policy which states that
Regardless of the choice of law approach courts will refrain from applying the law of another state when such law offends strong public policy of the foreign state
Limitations on and exceptions to choice of law approaches are also guided by Penal and revenue laws
Courts will also refuse to enforce the penal laws or revenue laws of another state
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