Domicile Is the Method by Essay

Download this Essay in word format (.doc)

Note: Sample below may appear distorted but all corresponding word document files contain proper formatting

Excerpt from Essay:

Such policy consideration must be neither arbitrary nor fundamentally unfair.

The Equal Protection Clause requires that all states must provide parties with an opportunity to file their claims. Denying a litigant such opportunity based on jurisdiction is unlawful unless there is a procedural justification for doing so.

The Privileges and Immunities Clause requires that all states treat all citizens, both citizens of the state and citizens of other states, the same. This means that the courts must provide all individuals access to the state courts without qualification. These privileges and immunities are considered fundamental and therefore afforded special attention.

Chapter Eight

Enforcement of Foreign Judgments

The judgments of one state's judgments are not necessarily enforceable in another state. However, there is a public interest in providing that judgments in one state should be enforceable in other states. This public interest is in ensuring that there is legal certainty which avoids repeated litigation and the possibility that conflicting results might occur. On the other hand, states also have an interest in making sure that judgments granted in other jurisdictions are not deficient or violate a state's public policy. The conflict of law principles govern these concerns and mediate between the competing interests.

The recognition of judgments between the various states presents the courts with only limited problems. In the interest of judicial economy, most such judgments are afforded enforcement. As the world becomes more global, however, the enforcement of foreign judgments has become increasingly more problematic. This is an area of the law that is receiving increasing scrutiny. The issue of whether or not the courts will generally recognize and enforce a foreign judgment turns on a determination of whether or not the court granting the judgment had proper jurisdiction. Such determination is based on the law of the recognizing court and not the law of the judgment granting court.

Conflict of Laws

The area of the law identified as the conflict of laws involves the determination of what jurisdiction's law will apply in the litigation of a particular cause of action. For example, in the case of a claim arising from a contract signed between two parties. The question as to which law applies to such transaction may occur because the contract is signed in one state and then mailed to another state for another signature. It is entirely possible that the parties stipulated in their contract which state law is to be employed in any litigation arising from said contract but it is also possible that the parties did not so stipulate. In this situation there may be a problem as to a variety of issues relative to the contract including when the contract becomes recognized, how specific terms in the contract are to be interpreted, and what the respective duties and obligations of the parties are under the terms of the contract. Under the circumstances given, the question becomes which state laws should apply to the contract? In simplest terms, the general rule is that the court hearing the case should apply the law that has the closest connection with the contract but making such determination is not always an easy proposition.

Until approximately fifty years ago the traditional method of resolving disputes relative to the choice of law was to utilize what is often referred to as the territorial rules. These rules, which were eventually embodied in the First Restatement of Conflicts, are based on the vested interest theory. This theory states that a litigant's rights relative to a cause of action are vested at a particular place and time. Under this theory, although a case might be filed in one jurisdiction, the court in another jurisdiction might still apply the law of another jurisdiction to resolve the claim.

Through time, however, the territorial approach began to be criticized. One of the major criticisms was that the approach was arbitrary in that it resolved in a state's right in litigation stopping at its borders. As society became more mobile, it was determined that the territorial approach was inequitable and resulted in unfair verdicts. Proponents of the approach, however, argued that it provided a consistency that was needed and it discouraged shopping for the most advantageous forum. What has emerged is the debate regarding the rules approach to conflict resolution as exemplified by the territorial approach and the standards approach which has been subsequently adopted by a number of jurisdictions throughout the country.

As indicated earlier, in some circumstances, most often in contract disputes, the parties have agreed upon which laws they will depend in litigating their differences. This is an ideal situation for the court but there are obviously claims that are not contractual in nature and these claims may present facts that are external to the forum state. In such situations, determining whether the laws of a foreign jurisdiction are to be applied or the laws of the forum state is important to the outcome of the case. In making this determination not all jurisdictions now apply the territorial method as other approaches are now available.

The easier approach for the courts when presented with a potential conflict of laws situation is to apply the law of the forum jurisdiction. Such application is less costly and more efficient. The lawyers and judges are most familiar with the forum law and therefore more comfortable. Applying the laws of a foreign jurisdiction can be difficult and the involved parties must be careful to properly apply it but legal disputes are not always so neatly packaged and, thus, conflicts of law situations do occur.

The current state of the law in conflict resolution is that there is a difference of opinion as to whether a rules based approach should be utilized or a standards based one. The argument for the traditional rules approach is that it provides predictability and enhances the uniform treatment of all similarly situated litigants. Advocates for the standard based approach rely upon the argument that the better law should be applied and that such law is the one that achieves the most just result with the court shouldering the responsibility of determining what such result might be. Unfortunately, even though this approach might seem simple in theory, in application, it becomes far more complicated.

What has developed over time in jurisdictions adopting the standards approach is the use of the significant relationship test for deciding claims involving conflicts in laws? Making determinations under this test courts must consider a number of factors. Included among these factors are the relevant policies of the forum; the relative policies of the interested other jurisdictions; certainty, predictability and uniformity of result; and the ease in the application of the foreign law. These and other factors guide the courts in making a determination as to which law to apply in an effort at obtaining the most just result for the involved litigants.

None of the approaches used by the courts to make decision in conflict cases has received universal support. There are problems with all approaches. The standards approach provides judges with the most flexibility but the rules approach provides more certainty and consistency. Legal scholars continue to debate the merits of all approaches in determining conflict of law claims and, as the world becomes more global, the debate can be expected to continue. What is important is that any conflict of laws determination should take into account the relative interests of the parties while not discarding the state's interest in protecting parties' expectations, providing consistency, and minimizing the cost of litigation. The availability of forum shopping by litigants must be minimized as much as possible and a consistent body of law in the area of conflicts serves to achieve this result. Unfortunately, the present state of the law in regard to conflicts remains in flux as the states attempt to uncover the best method for protecting the various state interests while still providing litigants the opportunity of achieving the most fair result.…[continue]

Cite This Essay:

"Domicile Is The Method By" (2012, March 09) Retrieved October 26, 2016, from

"Domicile Is The Method By" 09 March 2012. Web.26 October. 2016. <>

"Domicile Is The Method By", 09 March 2012, Accessed.26 October. 2016,

Other Documents Pertaining To This Topic

  • Manufacturing Methods

    Operations Management Outline how a strategy of globalization will impact on a policy of pursuing economies of scale advantages Globalization is now becoming a critical aspect in regards to business operations. Due primarily to technological advances, and economic development, a more interconnected world is becoming standard. As such companies that rely primarily on fixed assets will depend more heavily on economies of scale to reduce the unit cost of each unit produced.

  • Islamic Golden Age Was Open

    The display of the various religious artwork effectively served to reinforce the fact that such faith was the governing power in the land, which the church itself reflected merely in its principle usage as a house of worship. The Hagia Sophia served a similar purpose, as it was built during one of the periods of devastation inflicted upon the Hagia Irene and was also viewed as a symbol of

  • Ancient Art in the Ancient World Polykleitos

    Ancient Art Art in the Ancient World Polykleitos, Doryphoros (early fourth century BC) As Paul Johnson (2003) notes, this ancient example of Greek classicalism "epitomizes a canon of male beauty embodied in mathematical proportions" (p. 63). Showing the perfection of contraposto, Doryphoros (or the spear-carrier) is a balanced representation of the body's muscles. Polykleitos, a contemporary of Phidias, had his own school of young artists, which carried on into the third century BC.

  • Slavery in the Republic of Texas

    Slavery The remnant of slavery in America has caused a great deal of stigma and represents a lasting stain on our nation's history. The issue slavery is a difficult one to explore because of the sensitivities involved and the shame associated with the practice of slavery. There are many issues that can be discussed when delving into this particular topic. Although the institution of slavery was prevalent in many states a

  • Nathaniel Hawthorne Life Imitates Were All the

    Nathaniel Hawthorne Life Imitates Were all the literary works of Nathaniel Hawthorne compiled into a single manuscript, then appropriately filtered to include only works of prose and fiction, and if an attempt were then made to uncover a single motif spanning through the vast majority of the remaining text, it would read something like the following. A protagonist is haunted by a vague, strangely preternatural feeling of foreboding and doom that eventually

  • Ethical Entity the Profiled Organization Is Youth

    Ethical Entity The profiled organization is Youth LifeLine America, The organization is a not-for-profit 501 c3 tax-exempt status and domiciled in O'Fallon Missouri, United States. Youth LifeLine America (YLA) operates in multiple cities throughout America providing services targeted to the adolescent. Specifically, YLA coordinate efforts to influence youth via such mediums as the arts, entertainment, sports and celebrities, to teach ways to be productive and encourage a mindset of sustained

  • Learning & Memory the Accuracy of Memory

    Learning & Memory The Accuracy of Memory The research I completed for this assignment was fairly straightforward. Upstairs in my living room on a day in which I had yet to leave the house, I tried to imagine my front door. I did so without having looked at it for at least 14 hours -- since I had arrived at home the evening before. Once I was able to visualize the door,

Read Full Essay
Copyright 2016 . All Rights Reserved