Handout File 1

CONFLICT OF LAWS

PROFESSOR SAM JORDAN

Copyright © 2016 by BARBRI, Inc.

CONFLICT OF LAWS OUTLINE AND HYPOTHETICALS Professor Sam Jordan Saint Louis University School of Law

INTRODUCTORY POINTS Look for Conflicts issues when the facts include ________________________________. Look for Conflicts issues to be combined with other subjects, especially family law, federal procedure, or torts. There are two important but distinct testing areas for Conflicts: 1. _______________________________________ 2. _______________________________________ We will also discuss Domicile, a legal concept that has applications in Conflicts.

Copyright ©
2016, BARBRI, Inc.

2. CONFLICT OF LAWS

TESTING AREA ONE: RECOGNITION OF JUDGMENTS

THE BASICS A recognition of judgments question may arise when two conditions are satisfied: 1. A judgment has been ______________________________________________. 2. A party is seeking to have that judgment ______________________________ _____________________________________.

Terminology Tip: You should refer to the place where the judgment was originally entered as the _________________________________, and the place where recognition is being sought as the __________________________________.

Core Question: Will the recognizing court recognize the judgment issued by the rendering court? Why might a party seek recognition of an existing judgment?

1. _______________ will most often seek recognition in order access enforcement mechanisms in the rendering state. Example: Cindy sues Derek in an Ohio court. Derek fails to respond, and the court enters a default judgment in the amount of $75,000. Derek lives in Springfield, Illinois, and has no assets in Ohio. Cindy may seek to have the Ohio judgment recognized and enforced by an Illinois court so that she can reach Derek’s assets. 2. ________________ will most often seek recognition to prevent a plaintiff from relitigating a claim or an issue. Example: Cindy sues Derek in an Ohio court. After two years of litigation, a jury returns a verdict in Derek’s favor. The next week, Cindy files an identical complaint against Derek in an Illinois court. Derek may seek to have the Ohio judgment recognized by an Illinois court so that he can bar Cindy from relitigating the same claim.

CONFLICT OF LAWS 3.

ANALYSIS OVERVIEW I. Is the rendering endering jurisdiction a si sister state or a foreign g country?

II.A If sister state: 1. Are the requirements of full faith and credit satisfied? 2. Are there are any valid defenses?

II.B II If foreign country:

Recognition is required when the answer to question #1 is _________ and the answer to

Is the foreign judgment entitled to comity?

question #2 is __________.

I. IS THE RENDERING JURISDICTION A SISTER STATE OR A FOREIGN COUNTRY?

 There is no analysis here! It will simply be provided to you in the facts.  On the bar exam, the answer here will almost always be _______________________.

II.A SISTER STATE JUDGMENTS

If the rendering court is a court in a sister state, then the source of the obligation to recognize the judgment is ________________________________________________.

Full faith and credit principles also apply to the recognition of judgments between __________________________________________________________.

4. CONFLICT OF LAWS

STEP 1: ARE THE REQUIREMENTS OF FULL FAITH AND CREDIT SATISFIED? ♦ Requirement #1: Jurisdiction. Rule: The rendering state must have had jurisdiction over the _____________ and the ________________________. Hypothetical: Cindy sues Derek in state court in Ohio, even though Derek has never been to Ohio and even though all of the facts relating to the claim asserted took place in Illinois. Derek fails to respond, and the court enters a default judgment. Cindy then sues in Illinois and seeks recognition and enforcement of the Ohio judgment. May Derek resist recognition on the grounds that the Ohio court lacked personal jurisdiction? ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________

Exception: When the issue of jurisdiction has been ______________________ ___________________________, then the jurisdictional determination is itself entitled to full faith and credit. Hypothetical: Cindy sues Derek in state court in Ohio. Derek has never been to Ohio, but did send emails to Cindy in Ohio that form part of the basis for the lawsuit. Derek appears in the Ohio court and files a motion to dismiss for lack of personal jurisdiction, but his motion is denied by the court. The case proceeds and eventually a jury finds in Cindy’s favor. Cindy then files an action in Illinois court and seeks to have the Ohio judgment recognized and enforced. May Derek resist recognition on the grounds that the Ohio court lacked personal jurisdiction? ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________

CONFLICT OF LAWS 5. ♦ Requirement #2: Merits. Rule: The judgment entered by the rendering state must have been on the merits. Hypothetical: Roger sues Jesse in state court in Nevada. The court dismisses the action after finding that the statute of limitations had run. Roger then files a similar complaint against Jesse in a Missouri state court. Can Jesse seek recognition of the Nevada judgment to bar Roger’s claim in Missouri? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

Other examples of judgments not on the merits include dismissals based on: 1.

____________________________________

2.

____________________________________

3.

____________________________________

4.

____________________________________

But be careful – Hypothetical: Roger sues Jesse in state court in Nevada based on a car accident in Las Vegas. Jesse fails to appear and the court enters a default judgment. Roger now sues in Jesse’s home state of Missouri and seeks recognition and enforcement of the Nevada judgment. Does Jesse have an argument to resist recognition? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

_________________ judgments entered after ____________________ are also considered on the merits for purposes of recognition.

6. CONFLICT OF LAWS ♦ Requirement #3: Finality. Rule: The judgment entered by the rendering court must be a final judgment.

Most common application here is a judgment on appeal in the rendering jurisdiction, which is ______________________________.

Tricky hypothetical: Laura sues George for divorce in Pennsylvania, and the court there enters a divorce decree that includes $1,000 in modifiable alimony payments. George then moves to California, and Laura files a suit there and seeks to have the Pennsylvania decree recognized and enforced. What result? The Pennsylvania decree is final as to _________________________________ but not final as to _______________________________________.

♦ Applicable Law: These three requirements are evaluated using the law of the ________________________ state. Example: Roger obtains a default judgment against Jesse in a Nevada state court. He then attempts to enforce the judgment in Missouri. Personal jurisdiction is supported by Nevada’s long-arm statute, but not by Missouri’s long-arm statute. Can Jesse resist enforcement of the Nevada judgment using requirement #1? No, because jurisdiction was proper according to the law of the rendering state. STEP 2: ARE THERE ANY VALID DEFENSES TO FULL FAITH AND CREDIT? ♦ VALID DEFENSES Valid defense #1: Penal judgments Rule: A penal judgment is not entitled to full faith and credit. Definition: A penal judgment is one that _______________________________ __________________________________________. Application: In practice, this means that the plaintiff in the suit that led to the judgment was _______________________.

CONFLICT OF LAWS 7. Tricky hypothetical: Roger sues Jesse in state court in Nevada. After a lengthy trial, the jury awarded Roger $50,000 in compensatory damages and $250,000 in punitive damages. Roger then files a suit seeking recognition and enforcement in Jesse’s home state of Missouri. What result? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

Valid defense #2: Extrinsic fraud Rule: A judgment obtained by extrinsic fraud is not entitled to full faith and credit. Definition: Extrinsic fraud is fraud that could not be corrected ______________ ________________________________________________________________.

♦ ATTRACTIVE BUT INVALID DEFENSES These are actually tested much more frequently on the bar exam. Attractive but invalid defense #1: Public policy. Hypothetical: Roger sues Jesse in state court in Nevada after Jesse fails to pay on a gambling contract. After a trial, the Nevada court enters a judgment for Roger. Roger then seeks recognition and enforcement of the judgment in Jesse’s home state of Missouri. Under Missouri law, gambling contracts are unenforceable. Can Jesse resist enforcement of the Nevada judgment? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

8. CONFLICT OF LAWS Attractive but invalid defense #2: Mistakes. Hypothetical: Roger sues Jesse in Nevada after Jesse fails to pay on a gambling contract. The Nevada court decides to apply Missouri law, and enters a judgment for Roger – even though Missouri considers gambling contracts unenforceable. Roger then seeks recognition and enforcement of the judgment in Jesse’s home state of Missouri. Can Jesse resist enforcement of the Nevada judgment? __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ Rationale: If mistakes were made, they should have been challenged through an __________________ in the _____________________ state.

II.B FOREIGN JUDGMENTS If the rendering court is a court in a foreign country, then the source of the obligation to recognize the judgment is _______________________ or _______________________. Rule: Under principles of comity, a recognizing court will exercise discretion to decide whether the foreign judgment should be recognized. Many of the same principles as full faith and credit will be considered to guide the court’s discretion (e.g., is the foreign judgment final? was the foreign judgment on the merits?). But there are two additional questions that a recognizing court may ask here: 1. Did the foreign court have jurisdiction? Example: Alice is sued in a Venezuelan court, even though she has never had any contact with that country. She hires a lawyer to argue that the court lacks jurisdiction, but the court rejects that argument and enters a judgment against her. Despite the fact that jurisdiction has already been litigated, an American court may decline to recognize the Venezuelan judgment. 2. Were the procedures in the foreign court fair? Example: Edgar is sued in an Iranian court based on some contract work he performed there. He returns to Iran to defend the claim, but is not permitted to call witnesses or challenge the admissibility of the plaintiff’s evidence. An American court may conclude that the foreign judgment was tainted by sham procedures and is therefore not entitled to recognition.

CONFLICT OF LAWS 9.

TESTING AREA TWO: CHOICE OF LAW

THE BASICS A choice of law question may arise when two conditions are satisfied: 1. The lawsuit involves factual connections with __________________________________. 2. The multiple states will have different _________ leading to different _______________. Core Question: Which state’s law will govern? Core Answer: The governing law is the law selected by the _______________ court according to its ____________________________________________ (assuming no applicable constitutional or statutory restrictions). Exceptions: 1. Diversity cases in federal court. Rule: A federal court sitting in diversity applies the choice of law approach of the _____________________________________________________. 2. Transferred diversity cases. Rule: When a diversity case is transferred within the federal system, the federal court applies the choice of law approach of the ___________________________. Restrictions that occasionally limit the forum court’s choice of law: 1. Constitutional: Due Process and Full Faith and Credit Rule: The constitution imposes a limit only if a state’s law is chosen that has no significant contact with and/or legitimate interest in the litigation. 2. Statutory Rule: If the forum state has a statute that directs a choice of law, then the forum court should apply that statute instead of the usual choice of law approach. Example: Borrowing statute.

10. CONFLICT OF LAWS

STRUCTURE OF A CHOICE OF LAW ANSWER

♦ PARAGRAPH 1: _______________________________________ “The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the (fill in applicable choice of law approach).” This is the “I understand choice of law” paragraph, and it is always _________________. ♦ PARAGRAPH 2: ________________________________________ Here, you will plug in a stock paragraph depending on which of the three tested approaches is being applied. Approach #1: Vested Rights (First Restatement) Approach #2: Interest Analysis Approach #3: Most Significant Relationship (Second Restatement) ♦ PARAGRAPH 3: ________________________________________ Here, you will consider the facts presented, apply the approach, and provide a conclusion. (Important: This conclusion should include both the _____________________________ and the ________________________.)

APPROACH #1: VESTED RIGHTS (FIRST RESTATEMENT) ♦ Stock Language for Paragraph 2 “Under this approach the court will apply the law of that state mandated by the ______________________________________________________. That rule is selected according to the relevant __________________________________________.”

CONFLICT OF LAWS 11. ♦ Structure of Paragraph 3 Sentence #1: Categorize the ________________________________________. Sentence #2: State the __________________________. Sentence #3: Apply the vesting rule to determine __________________________. Sentence #4: Apply the governing law to determine __________________. ♦ Sample Paragraph 3 “This is a torts case. Therefore, the applicable vesting rule is the place of injury. Here, the injury occurred in Michigan and thus Michigan law applies. Under Michigan law, a non-paying passenger cannot recover against the driver, and so the claim is barred.”

APPROACH #2: INTEREST ANALYSIS ♦ Stock Language for Paragraph 2 “Under this approach the court will consider which states have a ___________________ interest in the outcome of the litigation. The forum court will apply its own law as long as it has a _________________ interest. If the forum state has no _________________ interest, it will apply the law of another interested state.” ♦ Structure of Paragraph 3 Step 1: Discuss which states have legitimate interests. Step 2: Characterize the _____________________________. False conflict: Only one state has a legitimate interest. True conflict: Two (or more) states have a legitimate interest. Step 3: Choose ________________________ based on type of conflict. False conflict: Apply the law of the interested state. True conflict: If the forum is interested, apply forum law. Step 4: Apply the governing law to determine _________________.

12. CONFLICT OF LAWS ♦ Sample Paragraph 3 “In this case, only Illinois has a legitimate interest. It is interested in permitting recovery to compensate its injured resident (the plaintiff). Michigan is not interested in applying its restriction against recovery simply because the accident occurred there. Rather, it would be interested in applying its restriction only if the defendant were a Michigan resident. But the defendant in this case is from Illinois, so Michigan is not interested. This case is therefore a false conflict, and Illinois law should apply. Under Illinois law, the plaintiff may recover.” APPROACH #3: MOST SIGNIFICANT RELATIONSHIP (SECOND RESTATEMENT) ♦ Stock Language for Paragraph 2 “Under this approach the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider ________________________________ and __________________________________.” ♦ Structure of Paragraph 3 Step 1: Discuss connecting _______________. Step 2: Discuss ________________ principles. Step 3: Choose _____________________ based on most significant relationship. Step 4: Apply the governing law to determine ________________. ♦ Sample Paragraph 3 “In this case, the factual connections are split. The accident occurred in Michigan, and the injury was sustained there. But both the plaintiff and the defendant are from Illinois. As a matter of policy, Illinois seems to have the greater interest because the law at issue is a loss distribution rule and both parties share an Illinois domicile. As a result, Illinois appears to have the most significant relationship to the dispute and its law should apply. Under Illinois law, the plaintiff may recover.”

CONFLICT OF LAWS 13.

APPLICATIONS TO SPECIFIC SUBSTANTIVE AREAS

♦ Introductory Note #1: These specific areas will cover vesting rules under the First Restatement approach and connecting facts/policy principles under the Second Restatement approach. Interest analysis, however, is not sensitive to the substantive area at issue. ♦ Introductory Note #2: Under the First Restatement, the same vesting rule is generally applied to the entire claim. Under the Second Restatement and interest analysis, however, each issue may be analyzed separately. SUBSTANTIVE AREA #1: TORTS ♦ First Restatement Vesting Rule:

Governing law is the law where the ___________________ occurred.

♦ Second Restatement Considerations: Factual Connections: 1. Place of _____________________. 2. Place of ______________________. 3. Place where the parties are ____________________________. 4. Place where the relationship, if any, is ___________________.

Policy Principles:

1. Relevant policies of the __________________. 2. Relevant policies of __________________________________.

For all three approaches, the governing law will almost always be the law of the place of injury. But exceptions arise occasionally, particularly under the two modern approaches (interest analysis and most significant relationship). These exceptions typically kick in when two conditions are present: Condition #1: The rule at issue is a ______________________________________ rule. Examples include:

________________________________________ ________________________________________ ________________________________________

Condition #2: The parties in the case share a __________________________________.

14. CONFLICT OF LAWS ♦ Torts Hypothetical with Model Answers Martha and Joe are a married couple who live in Illinois. While on a vacation in Las Vegas, they are involved in a one-car accident. Martha is injured. When they return home from the vacation, Martha files a suit against Joe in an Illinois court. Nevada permits intra-family negligence suits, but Illinois does not. Vested Rights

Interest Analysis

Most Significant Relationship

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the vested rights approach.

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the interest analysis approach.

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the most significant relationship approach.

Under the vested rights approach, the court will apply the law of that state mandated by the applicable vesting rule. That rule is selected according to the relevant substantive area of law.

Under this approach the court will consider which states have a legitimate interest in the outcome of the litigation. The forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of another interested state.

Under this approach the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider connecting facts and policy principles.

This is a torts case. The vesting rule for torts cases applies the law of the place of injury. Here, the injury occurred in Nevada and thus Nevada law applies. Under Nevada law, spouses can sue one another for negligence and Martha’s suit is therefore not barred.

In this case, only Illinois has a legitimate interest. Illinois certainly does because the issue involves the distribution of losses and both parties are from that state. Nevada has no legitimate interest in how the losses from the accident are distributed between two Illinois domiciliaries. Therefore, the case is a false conflict and the Illinois court will apply its own law. Under Illinois law, Martha cannot recover because her claim is barred.

In this case, the factual connections are split. The injury and the conduct leading to the injury occurred in Nevada, but the parties are both Illinois domiciliaries and their relationship is centered there. The policy considerations favor Illinois because the relevant issue involves the distribution of losses and both parties share a common domicile. Therefore, Illinois has the most significant relationship and its law will govern. Under Illinois law, Martha cannot recover because her claim is barred.

CONFLICT OF LAWS 15. SUBSTANTIVE AREA #2: CONTRACTS

I. Choice of Law Provisions ♦ Rule: A choice of law provision will be enforced if it is ___________________ and ____________________. ♦ Impact:

If the choice of law provision is enforced, the provision displaces the choice of law analysis that the court would otherwise perform. Conversely, if the choice of law provision is rejected, the court should then conduct a choice of law analysis. If in doubt on the bar exam, find the provision ___________________.

♦ Applications: Two reasons to find a choice of law provision invalid tend to be tested: 1.

The law selected has __________________________________________ ______________________ to the contract. Hypothetical: Cheryl (from Ohio) and John (from Indiana) enter into a contract to add an extension to Cheryl’s home in Ohio. The contract expressly specifies Pennsylvania law in its choice of law provision. Will the court enforce the provision? ___________________________________________________________ ___________________________________________________________

2.

The provision was included without ______________________________. Hypothetical: Cheryl (from Ohio) and John (from Indiana) enter into a contract to add an extension to Cheryl’s home in Ohio. After John materially misrepresents Indiana law, Cheryl agrees to a choice of law provision that expressly specifies Indiana law. Will the court enforce the provision? ___________________________________________________________

___________________________________________________________

16. CONFLICT OF LAWS II. Choice of Law Analysis ♦ First Restatement Vesting Rules Rule #1: If the case is about formation, apply the law of the place of _______________. Examples of formation issues: 1. ___________________________________________ 2. ___________________________________________ 3. ___________________________________________ Rule #2: If the case is about performance, apply the law of the place of _____________________________. Examples of performance issues: 1. ___________________________________________ 2. ___________________________________________ ♦ Second Restatement Considerations Factual Connections: 1. Place of ______________________________. 2. Place of ______________________________. 3. Place of ______________________________. 4. Place where the parties are _________________________.

Policy Principles:

1. Relevant policies of the __________________. 2. Relevant policies of _________________________________. 3. Reasonable _____________________ of the parties.

♦ Contracts Hypothetical with Model Answers Simon, an Illinois resident, went to Minnesota and entered into a contract there with Louise, a Minnesota resident. Simon was supposed to perform in Minnesota, but instead went back to Illinois and did nothing. Louise files suit in Illinois. Simon now seeks to void the contract because he is considered a minor in Illinois and Illinois law does not recognize the capacity of minors to enter into contracts. Under Minnesota law, minors receive no such protection and the contract would be deemed valid and enforceable.

CONFLICT OF LAWS 17.

Vested Rights

Interest Analysis

Most Significant Relationship

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the vested rights approach.

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the interest analysis approach.

The issue presented is which state’s law will govern the outcome of this litigation. The governing law will be selected by the forum court using the most significant relationship approach.

Under the vested rights approach, the court will apply the law of that state mandated by the applicable vesting rule. That rule is selected according to the relevant substantive area of law.

Under this approach the court will consider which states have a legitimate interest in the outcome of the litigation. The forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of another interested state.

Under this approach the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider connecting facts and policy principles.

This is a contracts case involving a question about validity or formation. The applicable vesting rule is that the law of the place of execution governs. Here, the contract was executed in Minnesota. Under Minnesota law, contracts are enforceable and there is no defense available for the incapacity or minors. Therefore, Louise may recover.

In this case, both Illinois and Minnesota appear to have a legitimate interest. Minnesota has an interest because it promotes freedom of contract and wants to enforce contracts entered into there. But Illinois is also interested because its law seeks to protect minors, and the defendant here is an Illinois minor. Therefore, the case is a true conflict. Since Illinois has a legitimate interest, it will apply its own law. Under Illinois law, the contract is voidable and Louise may not recover.

In this case, the factual connections slightly favor Minnesota. The contract was entered into there, performance was contemplated there, and one of the parties to the contract was from there. Illinois’s only factual connection to the dispute is that the other party is an Illinois resident. The policy considerations are split. Illinois would like to protect its resident, but Minnesota would like to provide recovery to promote freedom of contract and to protect the reasonable expectations of its resident. Minnesota has the most significant relationship and its law will govern. Under Minnesota law, contracts are enforceable and Louise may recover.

18. CONFLICT OF LAWS SUBSTANTIVE AREA #3: PROPERTY Property is one area where all approaches essentially continue to apply the same rules. ♦ Immovable (Real) Property Rule: Apply the law of the ____________________. ♦ Movable (Personal) Property Rule #1: If the case involves an inter vivos transaction, apply the law of the ______________ at _______________________________________. Rule #2: If the case involves a matter relating to inheritance, apply the law of the __________________________________________ at _______________________________________. ♦ Hypotheticals 1.

Edna Merman lived in Arizona. She signed a will conveying her farm in Illinois to a church (also in Illinois). Later, she destroyed the will in a manner that would be considered valid in Arizona but not in Illinois. Will the farm go to the church? _________________________________________________________________ _________________________________________________________________

2. Same result or different if the property at issue was a car (located in Illinois)? _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ 3. Same result or different if the issue was the validity of a transfer of ownership of the car to the church made while Edna is still alive. (Still assume that the transfer would be valid in Arizona but not Illinois.) _________________________________________________________________ _________________________________________________________________ _________________________________________________________________

CONFLICT OF LAWS 19. SUBSTANTIVE AREA #4: FAMILY LAW Marriage Rule:

If a marriage is valid where _____________________, it will be recognized as valid ________________________.

Exception: When domiciliaries of one state _______________________ relocate to another state to perform a marriage that violates a ___________________ _________________ in their home state, the state of domicile will not recognize the marriage. Definition: A prohibitory rule is a rule that expresses a strong public policy regarding marriage (as opposed to _____________________ rules, which are administrative in nature). Hypothetical: Susan and Andrew live in Vermont. They would like to get married but cannot do so in Vermont due to a state law that does not permit second cousins to marry. One weekend, they travel to Massachusetts and get married there. They then return to Vermont. Will Vermont recognize the marriage? __________________________________________________________________ __________________________________________________________________ Divorce Rule: The forum will apply its own divorce laws. Rationale: To acquire jurisdiction, at least one of the parties must be domiciled in the state. Therefore the state has an interest in applying its own law. Legitimacy Rule #1: Legitimacy of a child is governed by the law of the _____________________ domicile at the time of the child’s birth. Rule #2: The validity of subsequent acts of legitimation are governed by the law of the _________________ domicile.

20. CONFLICT OF LAWS DEFENSES TO CHOICE OF LAW

Defense #1: Public Policy Rule: A forum court will not apply a law that is against its own ____________________ public policy. This rule appears in both Restatements, but as a practical matter it is most applicable to the __________________ Restatement. Caveat: As a reminder, this rule applies does not apply to recognition of judgments! Defense #2: Procedural Rules Rule: Regardless of the outcome of the choice of law analysis, the forum court will always apply __________________ procedural rules. Most Frequently Tested Issue: Statutes of Limitations ♦ General Rule: Statutes of limitations have historically been viewed as _________________________. ♦ Exception #1: Borrowing Statutes Borrowing statutes direct a court to look at both the forum limitations period and the foreign limitations period (in cases where foreign law governs under a normal choice of law analysis) and then to apply the ______________________ period. Hypothetical: Shawna sues Denny in Illinois based on an automobile accident in Montana. Montana has a one-year statute of limitations. Illinois has a two-year statute of limitations, and a borrowing statute. If Shawna sues 18 months after the accident, what result? _________________________________________________________________ _________________________________________________________________ _________________________________________________________________

CONFLICT OF LAWS 21. ♦ Exception #2: Limitations that Condition a Substantive Right If the normal choice of law analysis leads to the application of a foreign statute that creates a substantive right, then apply the ________________ _________________________. Hypothetical: Shawna files a wrongful death action against Denny in Illinois based on an automobile accident in Montana. After conducting a choice of law analysis, the Illinois court decides to apply Montana law. Montana’s wrongful death statute includes a one-year statute of limitations. Illinois has a two-year statute of limitations. If Shawna sues 18 months after the accident, what result? ________________________________________________________________ ________________________________________________________________ ________________________________________________________________

DOMICILE

Context: ”Domicile" will never be a question on its own. Instead, it is an issue in a broader analysis. In other words, something else in your answer may depend on a domicile determination. Example: Rhonda and Amy enter into a contract in North Carolina, and then Amy moves to Illinois. Shortly thereafter, Rhonda sues Amy in an Illinois court. The Illinois court determines that it has an interest (and will therefore apply its own law) if Amy is an Illinois domiciliary. DOMICILE BY CHOICE

Rule: An individual with _______________________________________ acquires a domicile when two conditions are satisfied: 1. ______________________________________________ 2. ______________________________________________

22. CONFLICT OF LAWS Hypotheticals 1.

Randy was born in Los Angeles and lived there for 25 years. Last week he moved to Chicago for a new job, rented an apartment, got a driver’s license, and opened a bank account. Randy’s domicile is ________________________. Even ______________ presence is sufficient if combined with clear intent.

2. Randy was born in Los Angeles and lived there for 25 years. A few months ago he moved to Chicago, where he rented an apartment and opened a bank account. The reason that he moved was to avoid child support and to evade criminal charges that he thought might be filed against him. Randy’s domicile is ________________________. _________________ matters; ____________________ does not. 3. Erica lived in Chicago but got fed up with the long and frigid winters. She decided to move to Miami, and so she sold her apartment and quit her job. As she was driving through Kentucky she was hit by a drunk driver and killed. Erica’s domicile was _______________________. You keep your old domicile until a new domicile is ____________________________. DOMICILE BY OPERATION OF LAW Rule: An individual who lacks domicile capacity is assigned one by law. Category #1: Children Rule #1: Newborns are assigned the domicile of their _______________________. Rule #2: In case of divorce, children are assigned the domicile of their _______________________________________. Category #2: Mental Incompetents Rule #1: An individual who in mentally incompetent is assigned the domicile of his/her ______________________. Rule #2: If an individual becomes incompetent after acquiring a domicile by choice, he/ she _____________________ the chosen domicile.