Conflict of laws

Domicile is the method by which the courts in the United States connect a person to a particular place for purposes of litigation. Generally, domicile will become an issue by virtue of two legal determinations: 1) it will appear as a result of a question of jurisdiction, that is, whether or not a defendant is domiciled within a particular location for purposes of exercising jurisdiction over the person; 2) in determining what the choice of law might be between the litigants. Simply, the issue is determined by whether or not the plaintiff and defendant each possess significant contacts with the particular jurisdiction to form a reasonable basis for applying said jurisdiction's laws.

Regardless whether the issue of domicile is a matter of jurisdiction or significant contacts, analyzing the appropriateness of domicile will be the same. The issue will come down to making a decision whether the domicile is one of origin, choice, or by operation of law. Domicile of origin is assigned to every U.S. citizen at the time of his or her birth and is based upon the domicile of one's parent. Domicile of choice is acquired by an individual's physical presence in a particular jurisdiction and intent to remain in said jurisdiction. Unless both of these elements are present at the same time, domicile remains in one's prior domicile. Domicile by operation of law is a more complicated matter. This type of domicile is reserved for those who historically were unable to establish domicile on their own such wives, minors, and persons under a disability.

Chapter 2

Jurisdiction of Courts

Jurisdiction is the authority of a court to render decisions relative to a person's legal status, personal interests, or property rights. In determining the jurisdictional authority of a court is based on a number of factors including the a party's contacts with the jurisdiction, the statutory authority of the jurisdiction, and the receipt of proper notice and the opportunity to be heard.

There are essentially three types of jurisdiction. The first type of jurisdiction is described as in personam jurisdiction and it involves the power of the court to determine the personal rights and duties of the parties and then, subsequently, having the power to enforce those duties and rights against the person and the person's property. The second form of jurisdiction is in rem jurisdiction. Distinguished from in personam jurisdiction, in rem jurisdiction applies only to a particular piece of property and not as to any individual or individuals. The involved property must be within the jurisdiction limits of the courts but the court's decision is applicable to the entire world. The final type of jurisdiction is quasi-in rem jurisdiction. This type of jurisdiction involves a person's rights in a particular piece of property but the court's decisions in such decision are not applicable against the entire world.

Chapter 3

Choice of Law

Choice of law occurs when a party is able to establish contacts with more than one jurisdiction sufficient enough to call into question which law should be applied in any pending litigation. This situation has become more common as our society becomes more mobile and businesses have established themselves in multiple jurisdictions. In such cases, the courts are placed in a position of determining which jurisdiction's laws will apply and, interestingly, whether the full range of laws should apply or only a portion of the laws.

Chapter Four

Approaches to Choice of Law

Choice of law is a procedural stage in litigation which refers to what jurisdiction's laws will be applied in the course of the case. The determination is whether the forum state's laws, that is, the state in which the action is filed, or whether the law of another state which has an interest in the outcome of the state will be applied. Generally, the choices are between the state where the action is filed and the state where the cause of action arose. In most situations, the procedural rules of the state where the action is filed will be utilized in conducting the case while the substantive laws of the state where the cause of action arose will be used. In order for a case to be heard in any state there is an absolute requirement that there must be some connection between the state and the cause of action or the parties.

There are three basic types of approaches to choice of law: the traditional vested interest doctrine; the various interest and policy analysis; and, the most significant relationship approach. The vested interest approach is based on the belief that a state should have the right to rule on matters that occur within its borders while the interest and policy approach attempts to balance the relative interests of the litigants and the state where the action is filed. Finally, the most significant relationship theory examines which state has the most contacts with the litigation. Factors considered include the place of the injury, place of the conduct causing the injury, residence or place of business of the parties, and the place where the parties have had the most contact.

Chapter Five

Choices of Law -- Specific Substantive Areas

The choice of law may be dependent on the nature of the cause of action. There is no uniform approach to making a determination as to which law will be applied in any given type of case and the specific approach varies depending on the nature of the case.

Within specific substantive areas there may be some variation in the method used to determine which law to apply. Certain tort actions such as wrongful death, dram shop actions, and workers compensation cases are governed primarily by statute and not the common law and, therefore, particular attention must be paid by litigants to the language of the statute in the state where one is contemplating filing the action. Traditionally, the choice of law in tort actions is based on the significant relationship test. As already indicated, this standard can vary depending on the nature of the tort.

In contract actions the courts must pay deference to the law chosen by the parties. In many cases the contract document will set forth the parties' choice of the law that they prefer. In cases where this is not the case the significant relationship test is again applied. The significant relationship standards in contract cases, however, differ from those used in tort cases. In contract cases the significant standards include the place of contracting, the place where the negotiations for the contract occurred, the location where the contract was expected to be performed, the location of the subject matter of the contract, and the domicile or place of incorporation of the businesses.

Chapter Six

Traditional Defenses

There are a number of defenses that serve to defeat the application of traditional conflict rules. These defenses are based on public policy, penal laws, or revenue laws. In denying the filing of causes of action based on a violation of public policy the basic issue is whether the content of the foreign law when compared with public policy of the reviewing court is seriously deficient in quality. What occurs in this situation is that the forum state is sitting in judgment over the wisdom and fairness of the foreign law. Needless to say, the public policy limitation is used very infrequently by the courts.

Penal and Revenue defenses are also used infrequently as they involve the application of foreign laws that deal with attempts by governmental agencies and the courts are reluctant to involve themselves in such causes of actions. In these type of cases the courts will generally act to enforce judgments by government agencies but not involve themselves in government attempts to enforce the underlying claims.

In most conflict of law cases, the courts, when applying foreign law, will apply the substantive laws of such jurisdiction but apply the procedural laws of the forum state. Substantive law addresses the issues that materially affect the outcome of the case while procedural laws are those that dictate the rules of how the litigation will be conducted.

Chapter Seven

Constitutional Limitations

There are a variety of considerations in regard to the constitutional application of the choice of laws. The application of the Fourteenth Amendment and its reliance on Due Process has had a significant impact on the conflict of laws area. The courts for the most part have adopted a lenient position on due process and have allowed minimal contacts to be sufficient for the filing of an action. At the same time, however, the courts have warned against applying a forum law in situations where the state has no contacts with the transaction or parties involved in the action.

The Full Faith and Credit Clause has caused some difficulties in this area. The determination factor in such cases is whether or not a state has a real policy issue interest in applying its own laws as opposed to the laws of another state. As the purpose of the Clause is to provide some form of unity between the various states, courts must be careful to make sure that their policy considerations are important enough to override the interests of another state. 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.