Domicile – Domicile of Individuals
A. Domicile of individuals—individuals can only have one domicile at a time
1. Domicile by choice—where the person is present with the intent to remain for an
unlimited time
• Physical presence—actual physical presence is required
• Intent—must demonstrate intent to remain in the location (e.g., ownership of real
estate, voting, payment of taxes, having a bank account, or registration of an
automobile)
- Domicile by operation of law—occurs when an individual does not have legal capacity
to choose a domicile
• Infants—domiciled where the custodial parents are domiciled; an emancipated infant
may establish her own domicile
• Incompetents—a person lacking mental legal capacity to choose a domicile retains
her parents’ domicile; if the person chose a domicile while competent, that domicile will
continue after the person becomes incompetent
Domicile – Domicile of Corporations
B. Domicile of corporations—always the state in which it is incorporated
Domicile – Continuity of Domicile
C. Continuity of domicile—presumed to continue until a new domicile is acquired; the burden of showing a change in domicile is on the party that asserts it
Domicile – Change of Domicile
D. Change of domicile—takes place when a person with capacity to change her domicile is physically present in a place and intends to make that place home
Choice of Law [COL] – Limitations on COL – constitutional limitations
Limitations on COL—U.S. Constitution, state and federal statutes, and agreements of the parties can limit a court’s power to apply a particular COL rule
Constitutional limitations
• Due process—under the Due Process Clause of the Fourteenth Amendment, a forum state may apply its own law to a particular case only if it has a significant contact or
a significant aggregation of contacts with the state such that a choice of its law is
neither arbitrary nor fundamentally unfair
• Full faith and credit—requires a forum state to apply the law of another state when
the forum state has no contacts with or interest in the controversy
o Does not prevent the forum state from applying its own law when the forum has
such contacts or interest in the controversy
o Does not require a state to apply another state’s law in violation of its own
legitimate public policy
Choice of Law [COL] – Limitations on COL – Statutory Limitations
Limitations on COL—U.S. Constitution, state and federal statutes, and agreements of the
parties can limit a court’s power to apply a particular COL rule
- Statutory limitations
• State statutes—a state may have a statute requiring certain COL rules to be applied
in a particular case
• Federal statutes—certain federal statutes may preempt a state from claiming
jurisdiction over certain cases (e.g., patent, antitrust, bankruptcy cases)
Choice of Law [COL] – Limitations on COL – Party controlled COL
Limitations on COL—U.S. Constitution, state and federal statutes, and agreements of the
parties can limit a court’s power to apply a particular COL rule
- Party-controlled COL—courts will enforce a contractual COL provision if it is:
• A valid agreement with effective COL clause;
• Applicable to the lawsuit under the terms of the contract;
• Reasonably related to the lawsuit; and
• Not in violation of the public policy of the forum state or another interested state
Choice of Law [COL] – Approaches to COL in general – Vested Rights Approach
- Vested rights approach
• The law that controls is the law of the jurisdiction where the parties’ rights were
vested (i.e., where the act or relationship that gave rise to the cause of action
occurred or was created)
• The forum court would first characterize the issues in the cause of action (e.g.,
procedure v. substance; tort, contract, property, domestic relations, etc.)
Choice of Law [COL] – Approaches to COL in general – Most significant relationship approach
- “Most significant relationship” approach—applies the law of the state with the most
significant relationship to the issue in question
• Forum court will: (i) isolate the precise legal issue that results in a conflict between
competing states; (ii) identify the policy objectives that each state’s law seeks to
achieve with respect to such issue; and (iii) determine each state’s interest in view of
its policy objectives, concluding which state has a superior connection
Choice of Law [COL] – Approaches to COL in general – Governmental Interest Approach
- Governmental interest approach
• It is presumed that the forum state will apply its own law, but parties may request that
another state’s law be applied because that state has a greater interest in the outcome
• False conflict (i.e., the forum has no interest in the litigation)—the court applies the
law of the state that does have an interest in the case
• True conflict (i.e., the forum and another state each have an interest in the litigation)
o The forum state reviews its own policies to determine which law should apply
o Conflict cannot be resolved—the law of the forum state is applied
• Disinterested forum
o Forum non conveniens available—the forum state should dismiss the case
o Forum non conveniens not available—the forum state may either make its own
determination as to which law is better to use, or apply the law that most closely
matches its own state law
o No state has an interest—the law of the forum state generally prevails
Choice of Law [COL] – Approaches to COL in general – COL rules in Federal Diversity Cases
- COL rules in federal diversity cases
• Federal district courts are generally required to apply the COL rules of the state in
which it sits (only to the extent that the state’s rules are valid under the Full Faith and
Credit and Due Process Clauses of the U.S. Constitution)
• If a diversity case was transferred from a federal court in another state, the first state’s
COL rules will be applied
Choice of Law [COL] – Approaches to COL in general – Dépeçage
- Dépeçage—an approach that allows the law of one state to govern one or more issues
while other issues are controlled by the law of one or more other states
Choice of Law [COL] – Approaches to COL in general – Renvoi
Renvoi
• Requires a forum court applying another state’s law to apply that foreign state’s COL
rules
• Generally rejected today
• Federal Tort Claims Act—requires application of the whole law—including COL
rules—of the place where the act or omission took place
Choice of Law [COL] – Rules for Specific Areas of Substantive Law – Torts
- Torts
• Vested-rights approach—the case is governed by the law of the place where the
last event necessary to make the actor liable for the tort took place
• Most-significant-relationship approach
o Policy principles are applied to determine the applicable substantive law
o Default rule—the place of injury controls unless another state has a more
significant relationship to the parties or the tort
• Governmental-interest approach
o The forum state generally looks to its own law, so long as that state has a
legitimate interest in applying its own law
o Another state’s law would be applied if a party requests such an application and the
forum court determines that the other state’s law should apply in accordance with
the forum state’s policies
Choice of Law [COL] – Rules for Specific Areas of Substantive Law – Contracts
- Contracts
• Express COL provision—governs, unless:
o It is contrary to public policy
o There is no reasonable basis for the parties’ choice, or
o True consent was not given because of fraud or mistake
• Vested-rights approach—the applicable law depends on either where the contract
was executed or where it was to be performed
o Place of execution—validity, defenses to formation, interpretation
o Place of performance—time and manner of performance, person obligated to
perform and person entitled to performance, sufficiency of performance, excuse for
nonperformance
• Most-significant-relationship approach
o Generally—policy factors are considered, as well as:
Location of contracting, negotiation, and performance
Place where contract’s subject matter is located, and
Location of the parties’ domiciles, residences, nationalities, places of
incorporation, and places of business
o Default rules—generally apply unless another state is found to have a more
significant relationship with regard to the issue:
Land contracts—controlled by the law of the state of the situs of the land
Personalty contracts—controlled by the law of the state where delivery
occurs
Life-insurance contracts—controlled by the law of the state of the insured’s
domicile
Casualty insurance contracts—controlled by the law of the state where the
insured risk is located
Loans—controlled by the law of the state where repayment is required
Suretyship contracts—controlled by the law of the state governing the
principal obligation
Transportation contracts (covering both persons and goods)—controlled by
the law of the state of departure
• Governmental-interest approach—does not change based on substantive areas of
law
Choice of Law [COL] – Rules for Specific Areas of Substantive Law – Property
Property
• Tangible personal property—generally, the law of the state where it is physically
located applies unless the UCC or governmental-interest approach applies
• Intangible property—generally, the law of the state in which the intangible was
created or the transfer was made applies, unless the UCC or governmental-interest
approach applies
• Real property—generally, the law of the state in which the real property is located
applies, unless the governmental-interest approach applies
• Trust property
o Transfers of trust property—governed by the rules above based on the type of
property involved
o Administration of a trust—usually governed by the law of the place where the
trust is administered
Choice of Law [COL] – Rules for Specific Areas of Substantive Law – Inheritance
Inheritance—depends upon the type of property at issue, real or personal
• Personal property—intestate and testate succession is governed by the law of the
deceased’s domicile at the time of death
• Real property—intestate and testate succession is governed by the law of the situs of
the real property
Choice of Law [COL] – Rules for Specific Areas of Substantive Law – Corporations
Corporations—generally governed by the law of the state of incorporation
Choice of Law [COL] – Rules for Specific Areas of Substantive Law – Family Law
Family law
• Marriage—in general, valid where it took place and recognized in all other states
o Exception—a marriage that is valid in the state where it took place, but violates a
prohibitory rule of the domicile of one of the parties will be void in the state where
the marriage would have been prohibited if the parties immediately return to that
state and become domiciled there
• Divorce—questions of law relating to the grounds for divorce are controlled by the law of the plaintiff’s domicile
• Legitimacy—governed by the law of the domicile of the parent whose relationship to
the child is in question
• Adoption—the forum court applies its own state law
Choice of Law [COL] – Rules for Specific Areas of Substantive Law – Worker’s Comp
Workers’ compensation—in general, any state with a legitimate interest in an injury and its consequences may apply its workers’ compensation act; the employer and employee
may contractually agree to apply a particular state’s law unless doing so would violate the public policy of another state with a legitimate interest
• Recovery in more than one state
o When more than one state has a legitimate interest, a worker should review the
workers’ compensation statutes of each state before deciding where to file his claim
o A subsequent workers’ compensation award in another state is barred only if there
is “unmistakable language by a state legislature or judiciary” barring such recovery;
double recovery is not permitted
• Immunity—generally, only given to employers (not manufacturers of defective
equipment)
Choice of Law [COL] – Defenses Against Application of Foreign Law
- Procedural, rather than substantive—the forum’s laws of procedure, as determined by the forum state’s law, always govern
- Laws against public policy—if a foreign law violates the public policy of the forum state,
the forum court may refuse to apply that law - Penal laws—a forum state will not enforce another state’s penal laws
Choice of Law [COL] – Proof of Foreign Law
Proof of foreign law—generally, most states allow their courts to take judicial notice of other
states’ laws and federal laws and treat them as law rather than fact; federal courts must take judicial notice of the laws of all states
Recognition of Foreign Judgments – Full Faith and Credit Judgements
Full faith and credit judgments—if a valid judgment is rendered by a court that has
jurisdiction over the parties, and the parties receive proper notice of the action and have a
reasonable opportunity to be heard, the judgment will receive the same effect in other states
as it receives in the state where it was rendered
- Judgment—must have been brought in the proper jurisdiction; be final; and on the merits
- Defenses—penal judgments, equitable defenses, inconsistent judgments; erroneous
proceedings NOT a defense
Recognition of Foreign Judgments – Federal Court Judgements
Federal court judgments
1. Federal to state—federal courts must give full faith and credit to state court judgments
- State to federal—if a federal court with diversity jurisdiction over an action issues a
judgment, a state court must give such judgment the same res judicata effect that the
judgment would have been given by the courts of the state where the federal court was
located
