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Conflict of Laws
St. Johns University School of Law
Cavanagh, Edward D.

Conflict of Laws

Spring 2015

Edward Cavanagh

Chapter 1

1. Overview: You should always ask yourself the following questions:

A. Where to file the suit

B. Which law applies?

C. What is the effect of the judgment (can it be exported)

2. The 3 important topics that conflicts law attempts to resolve is:

A. Domicile (legal residence)

B. Jurisdiction (subject matter, in personam, in rem, quasi in rem)

C. Choice of law

3. Three Pillars of Conflict

a) Preliminary to court proceeding-which court should/can exercise jx. If court is able, should it do it.

b) Choice of law-arises when we have an ongoing court proceeding; issue is which law should court apply

c) Recognition and enforcement of judgments. What happens to judgment, i.e., res judicata, collateral estoppel, full faith and credit clause in sister state judgments (does not reach foreign nation judgments)

a. Vertical conflict: federal government vs. state government

b. Horizontal conflict: state government vs. state government

c. If state is dealing with a foreign country, court will treat it the same way as a State vs. State conflict.

4. The concept of conflicts in these various areas does two things: (1) It lends legitimacy to the decisions that are ultimately made (recognition that the parties had a fair opportunity to present their case when they had their day in court); and (2) to bring some uniformity to the results.

5. Concerning how property passes:

a) Real property is governed by the law of the location or situs.

b) Personal property is governed by the law of the domicile of the decedent.

c) The forum law will determine the domicile of the litigants using the forum’s law and conflicts law. The forum, the court, will determine domicile of the party or parties using the forum’s law, including their own conflicts law.

d) By mutual agreement, two parties may select the law and forum to apply in case of dispute. However, in a unilateral transaction, one party cannot confer or select the law or forum.

Chapter 2

Domicile the Chosen Point of Entry

1. Domicile is a common law creation

a. physical presence in the jurisdiction and

b. the intent to remain indefinitely

c. NY a fixed, permanent and principle home to which a person wherever temporarily located always intends to return.

2. Nationality- the court tends to look to a person habitual residence ( you are there a lot but not necessarily permanent.

3. First port of entry key factor we look to for choice of law decisions (ex: estate administration and succession, taxes, property, chattel, divorces, marriages, and custody)

2. Intestate Succession to Movables:

1. Estate of Jones: Decedent was born in Wales, moved to IA, and then died on a ship while returning to Wales.

a. Reasoning: Every person, under all circumstances and conditions, must have a domicile somewhere. There’re different kinds of domiciles recognized by law

i. Constitutes the domicile of an infant, and continues, until abandoned, or until the acquisition of a new domicile, in a different place.

ii. Domicile of choice: the place which a person has elected and chosen for himself to displace his previous domicile. Age of maturity can change domicile

iii. Domicile by operation of law: that domicile which the law attributes to a person independent of his own intention or action of residence.

iv. Artificial Fiction of Reverter: English Rule that when a person left a domicile of choice intending never to return and it seems unrealistic to say that the person retained a domicile there, the domicile of origin would renew again until a new domicile of choice has been acquired.

v. US laws rejects the concept of reverter. Have to be aware that domicile is largely a state of intent.

b. Domicile is retained until a new domicile has actually been acquired/ perfected.

2. White v. Tennant: White had been domiciled all of his life in WV where his extended family resided. White and his wife then moved to a part of the family farm across the PA border. They got there and started unpacking. Wife got sick with typhoid and they were invited to stay in WV with extended family until wife recovered. White got sick and died without ever spending a night in their PA home. Under WV law, his wife got everything, under PA law, his estate would be split with his wife and siblings

c. The focus is not on the intention to change domicile but rather on the intention to reside permanently in one place.

d. In choosing a domicile the purpose is irrelevant. Even if the purpose is illicit.

e. Court held that he had in fact intended to make PA his new domicile and that it had become so. In this case, as compared to Jones, White had actually made to his new domicile of choice with the intent of remaining there. He had perfected his choice. YOU MUST GET THERE. This case is a DOMICLE OF CHOICE EXAMPLE!

3. For a change in domicile you must have: abandonment, intention, action, and actually arrived at the new domicile. Majority view is that you must get there.

3. Validity of a Will:

4. In Re Estate of Clark: Clark died while domiciled in VA with his wife. His estate consisted of property in NY and VA, the bulk of which consisted of securities held in a NY bank. His will required that his estate be administered under the

iction unreasonable.

a) Does the court have JD over the subject matter?

b) Does the court have JD over the person?

6. Alvord v Alvorod FACTS: П posted service on ∆’s door in NY, even though ∆ was in France while moving to Switzerland.

a. REASONING: It’s clear that domicile was still in U.S. at time service was made, for ∆ had not yet arrived in Switzerland, his allegedly intended new domicile. The existing domicile, whether of origin or selection, continues until a new 1 is acquired.

b. General jurisdiction: ∆ can be sued at the domicile on any cause of action, even 1 not arising out of or related to anything occurring in the forum.

c. Specific jurisdiction: claim-related jurisdiction. relationship to activities or cause of action that occur in the jurisdiction. For instance, a tort that occurs within the state between two out-of-state parties.

d. The Requirements for a valid judgment: in personum JD, subject-matter JD, and service/notice. Remember due process has no right b/t private parties. It deals with gov’t interests.

7. Special Situation: Students will usually not acquire a domicile in the place where school or college is located.

a. The situation is different if student has abandoned parental home and has struck out to make an independent life, particularly if student has married. It then becomes far more likely that court will accept claim that location of institution of learning is student’s “home” and is a domicile of choice.

b. Any minor over 18 has the capacity to acquire a domicile of choice for voting purposes, and his capacity isn’t impaired by living in a college dormitory and receiving parental support.

c. A person doesn’t usually acquire a domicile of choice by his presence in a place under physical or legal compulsion.

d. It’s difficult for a person to acquire a domicile of choice in the prison in which he is incarcerated.

e. Where serviceman lives off base and shows clear intention to make his home where he lives, he may acquire a domicile there.

f. In close cases, decision of a question of domicile may sometimes depend upon purpose for which domicile concept is used in the particular case.