Gilbert Law Summaries Constitutional Law Term Paper
- Length: 32 pages
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- Subject: Business - Law
- Type: Term Paper
- Paper: #42385435
Excerpt from Term Paper :
This essay provides a brief overview of several of the key factors in conflict of laws, including the areas where choice of law is likely to be at issue.
Domicile is one of the key factors in choice of law. Domicile is not the same as location. Instead, domicile is a legal fiction connecting a person to a location for a specific purpose. Domicile impacts jurisdiction and choice of law. Domicile is more than residence, as it requires physical presence and the intent to remain in the state indefinitely. There are three types of domicile: domicile at origin, domicile of choice, and domicile by operation at law. The law of the forum determines domicile.
Jurisdiction of Courts
Jurisdiction is the court's ability to exercise authority over the parties. For a court to be able to exercise jurisdiction over a party: there must be sufficient contact between the state and the party; the court must have the statutory authority to hear the case; and the parties must be affording procedural due process. There are three types of jurisdiction: in personam jurisdiction, in rem jurisdiction, and quasi-in rem jurisdiction. In personam jurisdiction allows the court to directly impact a party. In personam jurisdiction can generally be established through: physical presence in a state; domicile, residence, or nationality, appearance or consent, minimum contacts, and through the provisions of long arm statutes. In rem jurisdiction is jurisdiction over a piece of property. Quasi-in rem jurisdiction allows the court to determine the rights of specific parties in regards to specific property. In order to exercise in rem or quasi-in rem jurisdiction over property, it is not enough that the property be in the state, but also that the action have a local impact. Courts have to have jurisdiction over the subject matter of the dispute, as well as jurisdiction over the parties. This can be an issue when there are specialized courts focusing on different content. Procedural due process requires that parties be given notice, an opportunity to be heard, and an opportunity to defend themselves in the court. Generally, once a court exercises jurisdiction over a matter, it retains jurisdiction over that matter. There are limitations on jurisdiction, whereby a court that would otherwise have jurisdiction cannot hear a dispute. The most significant of these is the doctrine of forum non-conveniens, whereby a court can refuse to hear an action if the forum is significantly prejudicial to one of the parties. In order to determine whether or not a forum is appropriate, the court considers: the plaintiff's preference, the residence of the parties, residence of witnesses, access to proof, costs to the defendant, and the plaintiff's motives for choosing a particular forum.
Choice of Law- General Considerations and Pervasive Problems
The issues underlying a lawsuit are frequently connected to more than one jurisdiction, giving rise to questions about which laws are applicable in the suit. The court has to consider whether it will recognize the laws of another jurisdiction, and, if so, to what extent it will apply that law. Renvoi refers to the situation where the forum's law directs the court to apply another state's whole law, but that second states conflict rules refer the forum court to either its own law, which is referred to as remission, or that of a third state, which is referred to as transmission. Decapage is a modern choice-of-law approach under which the court resolves choice-of-law issues according to each issue. Characterization is the fitting of factual situations into categories of law.
Approaches to Choice-of-Law Problems
There are a number of ways to determine choice of law. Statues can direct the choice-of-law. Choice of law theories will guide the choice of law in absence of a statutory directive. Under the vest rights approach, where the act occurred or a relationship was created determines the laws to be applied to the substantive issues in the case. Under the most significant relationship approach, the state with the most significant relationship to the issue determines choice-of-law. Under the governmental interest analysis, choice of law is determined by examining the underlying policies of the forums in question. Moreover, when a forum has not interest in applying a law, it needs to examine which law from the competing forums applies.
Choice of Law in Specific Substantive Areas
The substantive issues in a lawsuit frequently help determine choice-of-law provisions. For torts, the place of the wrong governs aspects of torts liability. When examining the most significant relationship approach, the court looks at where the injury occurred, where the conduct occurred, where the parties are domiciled, and where the parties have a relationship. For vicarious liability, generally the place where the defendant acted determines choice of law. For product liability, the forum can be either the place of injury, the place of the injury, or the place where it was sold. For contracts, the parties can designate a choice of law, but the court will examine those provisions for fairness. When a lawsuit involves property, first the court determines whether the property is movable or immovable. Generally, if property is immovable (real), then the forum of the location of the property applies. For movable property, in the event of post-death transmission, the law of the decedent's domicile at death applies, which other issues are governed by the location of the property at the time it is conveyed. For corporations, the state of incorporation governs forum. For workers compensation, the governing statutes are generally going to dictate forum. For family law issues, marriage laws are determined by whichever law upholds a marriage. For adoption, the state of the adoption always applies its own laws.
Traditional Defenses Against Application of Foreign Law
Sometimes, even when another forum's laws would generally be applicable, a court can refuse to apply those laws. They may do so when application of foreign laws would violate public policy. A court can refuse to enforce foreign penal and revenue laws. Furthermore, foreign law never governs procedural matters. Rules of evidence, the statute of frauds, and statues of limitations may be considered substantive rather than procedural.
Constitutional Limitations and Overriding Federal Law
The Fourteenth Amendment only prohibits choice-of-law decisions when a court's only contact with the litigation is that it is the forum for the lawsuit. The Full Faith and Credit Clause requires states to recognize the legal judgments of other states. When there is a conflict between state and federal law, if a federal right is involved, only the federal law governs. When there is no federal right, the Erie doctrine applies, and state substantive law will apply.
Recognition and Enforcement of Foreign Judgments
States will recognize and give a judgment from a foreign state the same recognition it would receive in the first state. However, the second state's law determines how it will enforce those judgments. Federal statues require the same consideration for federal court judgments and can be enforced in federal courts in any jurisdiction. A judgment must be final and on the merits to be entitled to foreign enforcement. Child custody decrees, which are, by their very nature non-final, are enforceable in foreign jurisdictions under the Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnapping Prevention Act.
Because parties may conduct their activities in a number of different forums, very frequently the court is called upon to determine which forum's laws apply. There are basic rules governing choice of law, but the first thing a party should do is examine whether there are any relevant statutes determining choice of law. The information presented herein provides only a bare outline of the key issues in conflict of laws.
Summary: Gilbert Law Summaries: Labor Law by Robert J. Gelhaus and James Oldham
Since approximately the 1850s, workers began to organize together to form blocks of labor, improving their odds of negotiating favorable employment agreements. Not only did these organized laborers form unions, but they also helped shape a complex body of American labor law. Most labor law in the United States is driven by statute. Therefore, this essay provides a brief overview of several of the key factors in labor law, concentrating most of its focus on the applicable statutes.
Background and Foundations of Labor Law
After the Civil War, laborers made a concerted effort to organize. In 1886, the American Federation of Labor (AFL) formed, and it had more than 2 million members by 1914. Early attempts at unionization were resisted through criminal statutes and civil injunctions. However, growing support for labor unions resulted in passage of the Clayton Act, which protected some labor activities. Under the New Deal, federal legislation supported the practice of collective bargaining. The Congress of Industrial Organizations (CIO) formed around this time. There was heavy competition between the AFL and CIO until they merged in 1955. Modern labor law depends on four laws: the Norris-LaGuardia Act of 1932, the National Labor Relations Act of 1935 (NLRA), the Labor Management Relations Act of 1947 (Taft-Hartley), and the Labor…