Conflicts Of Law Bar Exam - Bar Exam Outlines

Conflicts of Law

DOMICILE

• Background

  • Whenever you determine domicile needs to be addressed, begin that part of my essay answer with an explanation of WHY discussing domicile

• Black's Law Definition

  • Domicile:

    • A person's fixed or established legal residence

• State-Wide Domicile

  • For purposes of the bar exam DOMICILE is established on a STATE-WIDE BASIS

• Very Important General Rule

  • Each person has 1 domicile at a time for a single purpose, only 1 domicile at a time for a purpose and always has 1 domicile

    • So an individual is never without a domicile, or in-between domiciles, and an individual cannot have two or more domiciles for any one purpose

    • Execption:

      • Infants as discussed below

      • Possible for certain individuals to have different domiciles for different purposes in eyes of law, such as for divorce jurisdiction, choice of law, insurance coverage and inheritance tax purposes

• Methods of Acquiring Domicile

  • Only 2 Ways:

    • Choice

    • Operation of Law

• Domicile of Choice

  • Only may legally choose their own domicile if the individual possesses " DOMICILE CAPACITY"

    • Domicile Capacity:

      • Old enough and mature enough to fend for self

  • Test for if person has CHOSEN domicile is 2 part test:

    • Physical presence in place that is to be domicile, AND

    • Individual has intent to make that place their domicile

FACTORS MUST OCCUR TOGETHER TO SATISFY CHOICE OF DOMICILE TEST

• Physical Presence

  • Longer ones physical presence in a particular state, more likely that place it to be domicile

    • BUT, very very very short period of time can work for physical presence as long as at that same time had INTENT factor

• Intent to Be Domiciled

  • Determination of intent to be domiciled in a state should take into account all of the RELEVANT circumstances

    • Job, mailing address, bank account, house or apartment, registered to vote, registered motor vehicle, spends time,

  • VERY IMPORTANT FACTOR

    • Steps one has taken to abandon previous domicile

    • ACTIONS SPEAK LOUDER THAN WORDS

  • VERY IMPORTANT POINT

    • Individual only needs to intend to reside in state indefinitely or for the time being in order to satisfy intent standard

      • Focus on intent not motive

  • Multiple Residences

    • For person with more than one house in more than one state, domicile is the state of PRINCIPAL/PRIMARY DWELLING

      • Larger & more valuable, from which works or commutes to work, spends more time, etc.

    • If hard to tell:

      • Rule is first-acquired house is place of domicile

  • Perfecting a New Domicile

    • People retain old domicile till PERFECT new or different one

    • To perfect, satisfy the 2 part test: Physical Presence & Intent to make place of legal residence

• Domicile by Operation of Law

  • Applies to:

    • Domicile will be determined by operation of law for those persons who lack domicile capacity--

      • Infants

      • Mentally incapacitated people

  • Infants

    • Infant has domicile of parents or parent in single parents setting

    • IN case of divorce or separation, domicile of infant is the state of domicile of parent have CUSTODY of child.

    • Exceptional Case of Multiple Domiciles for Infant

      • Where auto insurance only covered kid "Domiciled in house of owner"

        • But kid not "domiciled" in either house (cause equal)

        • HOLDING of 6th Circuit

          • 2 domiciles for single purpose of auto insurance

      • How apply:

        • Pick one but then note the case, exception

  • About mentally incapacitated people

    • Mentally incapacitated from infancy

      • Retain domicile of parents

    • Becomes Mentally Incompetent after having attained domicile capacity & after choosing domicile

      • Retain domicile of choice

        • Cause can have intent to chose new one

RECOGNITION OF JUDGMENTS

• Spotting Recognition of Judgment Question

  • There will be 2 or more states involved in the facts pattern AND a judgment in a litigation between the parties will have been rendered in one of those states

    • Then one party will seek to have judgment enforced or recognized in second state

• Terminology

  • Rendering State

    • State in which litigation occurred & judgment was entered

  • Recognizing State

    • State is the second state, the state called upon to recognize the judgment

  • On Bar Exam

    • Unless told otherwise, the recognizing state will be OKLAHOMA

• Two Contexts for Recognition of Judgments Questions

  • P sues D in 1 state, wins judgment in rendering state, then seeks enforce judgment against D in recognizing state (OK)

    • So question is if OK has to recognize the judgment and enforce it against D

  • P sue D in one state, loses case in rendering state, then P files suit against D in a different state (recognizing state, and D defends against 2nd suit by contending recognizing state should recognized judgment for D.

    • D seeking have judgment of rendering state recognized

  • In both sets, Oklahoma, will have to determine if should recognize judgment

• Constitutional Mandate of Sister State Recognition of Judgments

  • US Constitution mandates the recognition by sister states of one another's judgments, under the "FULL FAITH & CREDIT CLAUSE"

    • Thus states don't have discretion not to recognize each other's judgments

    • It is mandatory IF there was a lawful & binding judgment of a sister state

  • Two Step Recognition Analysis

    • Determine if Full Faith & Credit requirements satisfied; (3 Part Test)

    • AND

    • IF satisfied, determine whether there are any valid defenses that would nevertheless prohibit recognition

• Three-Part Test for Recognition of Sister State Judgments

  • Must have been Proper Jurisdiction

    • Pj and SMJ

  • Decision in rendering state court must have been On The Merits

    • Based on substantive issue, not just a procedural ground or technicality

      • Default judgment considered to be on the merits

  • Decision in rendering state court must have become Final

    • All opportunities for post-trial proceedings & appeals exhausted or expired

• Whose Law Governs The Three-Part Test

  • Rendering State law determines if 3-Part test met

• Defenses to Recognition of Sister State Judgments

  • Only kick in once 3 Part Test met (proper jurisdiction, merits, final)

  • ONLY 2 VALID DEFENSES!!!!!

    • Penal Judgment

      • If sister state judgment is a penal judgment, not entitled to recognition

      • Penal Judgment=

        • one which punishes an offense against the public

        • Only if the People or the Government is Plaintiff can it be penal judgment

        • Private party plaintiff doesn’t equal penal judgment

        • Tax judgment not considered penal judgment even though gov is plaintiff

• Judgment Procured by EXTRINSIC Fraud

  • Extrinsic Fraud

    • More extreme

    • So far out of ordinary could not have been dealt with through standard workings of judicial system

      • Ex. Bribing judge

• Intrinsic fraud:

  • type of fraud which is commonplace enough that it could have been dealt w/ within the ordinary and regular workings of the judicial system

    • Ex. Perjured testimony

• Recognition of Domestic Relations Judgments

  • Types of Domestic Relations Judgments

    • Divorce decree

    • Ancillary awards of alimony, property and child custody

  • Biggest issue is of Proper Jurisdiction, even though who 3-part test applies

  • Proper Jurisdiction for Each Type

    • Divorce Decree

      • Rendering state must have had jurisdiction over the Marriage

        • At least one spouse is domiciled in the state that grants divorce

      • Also must make sure party attacking the jurisdiction of the rendering court should not be estopped from doing so

        • Estoppel Checklist (will be estopped from attacking divorce judgment)

          • Persons subject to personal jurisdiciton in earlier proceeding

          • Persons who played a meaningful role in earlier proceeding (paid costs & fees)

          • Persons who are in Privity w/ the parties to the earlier proceeding (children of the spouses)

          • Persons who marry or remarry in reliance on the earlier proceeding

• Property/Alimony

  • Rendering state must have had PERSONAL jurisdiction over the spouse whose property interests were in issue

• Child Custody

  • Rendering state must have been the HOME STATE of the child

    • State where child resided for 6 months prior to action

• Divisible Divorce Action

  • Where jurisdictional requirements for divorce are satisfied but the jurisdictional requirement for property/alimony and/or child custody are not, the recognizing state only has to recognize the divorce decree but not the rest. Can divide up the recognition

• International Recognition of Judgments

  • Whether a state court will give recognition to a foreign judgment is based on judicial discretion

    • NOT MANDATORY

    • Instead based on discretionary doctrine of COMITY

  • COMIDTY DOCTRINE

    • 2 Part Test

      • Jurisdiction proper in foreign country

        • Minimum contacts of parties w/ foreign nation to warrant court taking jurisdiction over parties and case

      • Were fair procedures employed in the court

        • Basic fairness, not strict us procedure

        • Ask: did parties get their day in court, have genuine opportunity to present case?

    • If both exist, then state court should, but does not have to recognize the foreign court judgment

CHOICE OF LAW

• Spotting a Choice of Law Question

  • One or more events relevant to a legal dispute will occur in two listed states

  • Then one part will file a lawsuit in one of the...