CONFLICTS - SUMMARY
Choice of law between states (including nation states)
Jurisdiction of courts over persons and property
Recognition of judgments
Federal law & extraterritoriality
Choosing legal regimes
to Choice of Law
Substantive subject areas:
torts (non-intentional & intentional)
contracts - place of contracting?
domicile - where a “settled connection”
marriage – where “contract of marriage”
property - situs law controls
business entities (e.g. corps) – where organized
The Choice of Law
Location – territorial or vested rights
Interest analysis – 1st Restatement
Modern approaches – 2nd Restatement
Possible constitutional constraints
privileges & immunities clause
due process clause
full faith & credit clause
Characterization of the substantive issue- e.g., contract
Renvoi –which law decides the approach to resolving
Substance v. Procedure – are conflicts rules applicable only
to substantive issues?
Statutes of limitations (procedural?)
Public policy (possible limitation in the forum)
Penal laws – not enforceable in another jurisdiction?
Modern Approaches to
Choice of Law
Interest analysis – using an alternative
approach: “center of gravity” or “grouping
of contacts” or “most significant contacts”
Demonstrated by various “guest statute” cases
Comparative impairment – in which state would
policies be most impaired? Weighing harm.
Use a “better law” analysis?
Conflicts Restatement 2nd – apply “most
significant relationship” test – in tort & contract
on Choice of Law
Cross border limitations
Obligation to provide a forum
Due process & equal protection clause
Full faith & credit clause
Privileges & immunities clause
Courts Over Persons & Property
Possible “due process” claim?
& waiver – re: location of legal proceedings; i.e., forum selection &
agreement re personal jurisdiction. E.g., qualification to do business in the
state; “minimum contacts” tests.
“Special appearance” possibility?
as a basis for jurisdiction,
including purchases? “Tag” jurisdiction?
Personal jurisdiction and the internet.
for property location. “In rem.”
What enforcement or rejection of judgments from other
jurisdictions? Is “full faith & credit” recognition required?
What jurisdictional requirements apply? E.g., the land
ownership & foreclosure cases.
What substantive interest of the enforcing state?
Exception for enforcement of “penal claims.”
Domestic relations issues & DOMA & divorce (other
jurisdictions) & spousal support & child custody.
What extraterritoriality/transnational application of federal
statutes (& U.S. Constitution)?
Territorialism – limit to the water’s edge?
But, contacts & effects – U.S. citizens abroad.
Presumption against extraterritoriality?
“Comity”– to not apply rule to foreign conduct.
International law of prescription jurisdiction - i.e.,
regulation of personal conduct
Extraterritoriality & the U.S. Constitution
Choosing Legal Regimes
contractual choice of substantive
law to govern relationships. Pertinent for business
transactions and contracts. Objectives include predictability and uniformity.
Parties can contract re governing law.
court/forum clauses: treated as valid and enforceable, including on a
transnational basis? Public policy limitation?
clauses: Specifies an alternate format for dispute resolution, possible for
cross-border disputes. Subversion of the proceedings?