Conflict of Laws - CONFLICT OF LAWS Spring 2006 I FORUM LAW...

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CONFLICT OF LAWS Spring 2006 I. FORUM LAW A. Advantages 1. easier for court to understand 2. easier for court to apply 3. reflects forum’s sense of justice B. Disadvantages 1. unfair when out of state elements of law not addressed by forum law 2. limits reciprocity between states 3. promotes forum shopping II. TRADITIONAL RULES (PRIMARY) A. Policy 1. parties have a vested right to the law of the place of the event 2. apply foreign law if simple to apply, promotes uniformity and protects expectations B. Analysis 1. characterize type of case 2. apply the applicable rule C. Torts Rule 1. Place of Wrong (a) if characterized as tort, apply the law of the place of the injury ( note : negligence without injury fails to create a cause of action) 2. Place of Negligence (a) if characterized as tort, apply the law of the place of negligence ( note : injury without negligence fails to create a cause of action) D. Contracts Rule 1. Place of Making (a) if characterized as contract, apply the law of the place of making 2. Place of Performance (a) if characterized as contract, apply the law of the place of performance 3. Place Parties Expected (a) if characterized as contract, apply the law that the parties expected to govern ( note : if no meeting of minds, then law presumed to be that which validates or upholds the contract, as the parties expected the contract to be valid) E. Real Property Rule 1. Place Land Located (a) if characterized as relating to interests in land, then apply the law of the place where the land is located F. Personal Property Rule 1. Place Property Located (a) if characterized as relating to creation and transfer of interest in personal property, apply the law of the place where the property is located
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2. Place of Domicile at Death (a) if characterized as relating to succession and distribution of personal property, then apply the law of decedent’s domicile of choice at time of death (i) domicile of choice acquired/perfected upon: a. physical presence and intention to permanently live there; or b. present intent to reside there indefinitely G. Status Rule 1. Place of Wrong (a) if characterized as relating to issues of status, apply law of the place of the wrong III. TRADITIONAL RULES (SECONDARY) A. Substance v. Procedure 1. Substance (a) if choice of law as to particular issue will affect outcome, then issue treated as substantive and apply choice of law to that particular issue 2. Procedure (a) if choice of law as to particular issue will not affect outcome (i.e. not essential to cause of action), then issue treated as procedural and apply forum law to that particular issue (e.g. burden of proof, statute of limitations) B. Public Policy 1. forum court may choose not apply foreign law as a matter of public policy if the foreign law is truly offensive to forum’s fundamental principles of justice and law C. Renvoi
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